TWISTS AND TURNS IN MDC WRANGLE


This week I offer an update of court cases and developments in the opposition in the context of the 7th anniversary of the 2013 Constitution.

1.     29 May 2020 Ruling

On Friday 29 May 2020, Justice Chitapi will deliver a ruling on an application to stop further recall of MDC Alliance parliamentarians. The ruling will determine whether the Alliance application is properly before the court. Several issues were raised concerning the application including the capacity of the Alliance to sue in its own name. If that ruling is in favour of Dr.Khupe, the case will be dismissed. If the ruling is in favour of the Alliance, then lawyers will argue whether the court should stop any further recall of MP's. This is unconnected to the cases filed to challenge the actual recall of four parliamentarians. The Friday ruling will indicate whether lawyers can argue to stop further vacancies being announced whilst the Alliance challenges the recall of its MP's. Thus, whatever outcome on 29 May 2020, these matters will remain in the courts for the foreseeable future. 

2.    ‘National Council’ Resolutions

On 21 May 2020, a group calling itself the National Council and National Executive of the MDC-T at the time of the death of Morgan Tsvangirai met and demanded a 6th June meeting with Dr.Khupe, Douglas Mwonzora and others. According to Jameson Timba,  this was done because the  MDC-T Constitution allows the National Council to self-convene on petition from at least a third of its members. Section 6.4.2.6 of the MDC-T Constitution provides as follows:

An emergency National Council Meeting may be convened on the basis of a petition signed by at least one third of the members of the National Council provided that at all material times only the President or any person specifically delegated in writing by him or her shall have the right at any time of convening a meeting of the National Council.

Thus, whilst the party constitution allows a petition for an emergency national council meeting, it does not allow the National Council to self-convene. Douglas Mwonzora correctly pointed out that it is only the National Chairperson who presides over national council meetings and the Secretary General convenes them under the supervision of the President under sections 9.3.1 (h) and 9.5.1(a) of their party constitution. In other words, the 21 May 2020 meeting was not properly constituted. However, this is not fatal – as long as it is not fashioned as a meeting of an organ of the party but just a group of persons who met to petition the Dr.Khupe leadership. If it is presented as a National Council meeting, it is as void as the Central Committee meeting which ‘recalled’ Robert Mugabe.

3.    MDC-T/MDC-Alliance Membership

The 21 May announcement introduced a new dynamic to this wrangle. Previously, MDC Alliance members insisted that the Supreme Court judgement had nothing to do with them. They are now claiming a right to be consulted in the implementation of a judgment which, in their words, is not germane to their political fortunes. They constituted themselves under a constitution they disowned to meet a leadership they do not recognize. This is not what the constitution permits. They can only petition Dr.Khupe if she is their leader and they are members of her party, which would be at odds with the mantra of Chamisa Chete Chete. It is the dark art of applying rugby rules to a game of soccer. What is handball when committed by the other team is not only excusable, but actively encouraged when done by your own team.  

If the MDC Alliance members can petition Dr.Khupe under the MDC-T Constitution, then she is their leader with an attendant power of recall. It also means the petitioners are members of the MDC-T, without which membership they have no right of audience. It redounds to the original claim that the Alliance was a coalition whose individual membership was retained by its constituent parties. MDC Alliance party members cannot constitute themselves as the authentic structures of a different party altogether. This duality of membership is being created to re-enact the events of 2018 when Dr. Khupe’s constitutionally mandated incumbency was usurped in favour of Advocate Chamisa. It is meant to flex Chamisa’s populist muscle to counter the weight of two court orders. We are literally going round in circles. The main MDC’s response to the finding of constitutional violation is to re-engineer events which led to the current quagmire. Needless to say, this is not a spitting image of progress.

4.    What happened to the Alliance?

This foments confusion in an already messy set of narratives and counter narratives. For a long time, it was understood that the Alliance ceased to exist after elections when the MDC incorporated MDC-Green and PDP. This all changed after the Supreme Court ruling. Suddenly, it was claimed that the Alliance had actually continued after elections but only switched to a stand-alone party incorporating MDC-Green and PDP. This mutated further when we were informed this week that the Alliance ended on 2 March 2018 and became one political party with MDC-Green and PDP before elections! According to Jameson Timba,  the 11 September 2018 appointments of Welshman Ncube as vice president and Tendai Biti as deputy chairperson actually occurred before elections. It is enough to make your head spin. In the Supreme Court, the MDC had argued that the wrong constitution was used by the High Court before conceding that the correct version had been used. After the Supreme Court ruling, the MDC distanced itself from that constitution and adopted the Alliance identity. After insisting on all platforms that the Alliance did not need a constitution, Chalton Hwende indicated this week that they actually have a constitution! It is not clear whether there is a coherent set of facts in this matter, or rather a contrivance of claims conjured up over time to ameliorate the effects of an adverse court ruling.

5. So what?

Ultimately, this probably does not matter for many voters. They just want a viable alternative to ZANU PF and believe any misfeasance by MDC is negligible in comparison to the ruling party. That is a reasonable calculation. However, it remains possible to support the opposition and still question why the MDC has a written constitution if they want to operate with the sovereignty of the UK parliament. Constitutional supremacy is at odds with the current claims of plenary powers accorded to the majority. It also seems counter-intuitive to subject the party to court processes if party leadership is unwilling to comply with court orders. This approximates to the words of then Commissioner of Police Augustine Chihuri when faced with an order to evict land invaders in 2000:

… Police intervention in one place will apocalyptically provide the match stick that will ignite this beautiful country of ours into a bloody conflagration.....Equally the courts are not the forum where the land problem can be solved. It required an armed struggle to begin to attempt a solution to the problem. …. This Honourable Court should be mindful of that.

The MDC has adopted a similar approach in discounting the role of courts and arguing for impossibility of enforcement. On this 7th anniversary of the 2013 Constitution, we must recall that the rule of law also requires compliance with unfavourable court orders. Political parties and nation states are guilty of enacting constitutions which they are not willing to implement. This implementation gap defines the distance between the respective constitutions and a culture of constitutionalism. Constitutions are not just about majorities. They give minorities a chance to avoid tyranny by numbers. Insistence on majoritarian views to trounce constitutional imperatives stifles the capacity for diverse and inclusive development. Further, perpetuating a battle which was settled by the Supreme Court only entrenches this aversion to the rule of law leaving the party vulnerable to more adverse rulings. The 22nd of May should remind us all that it is commitment to constitutionalism which will restore the image of our country and its political parties as grounded in justice, equality and the rule of law.

Comments

  1. Romeo Kudzaishe Mugadzaweta22 May 2020 at 20:43

    Insightful piece. Thanx

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  2. Unknown22 May 2020 at 23:34

    Dear David. Thanks for the insights. Can you please explain further on the part you said, "However this is not fatal......"

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    Replies
    1. D.Tinashé Hofisi23 May 2020 at 09:32

      Thanks so much. By that phrase, I mean they can still claim to be petitioning in terms of the constitution without claiming to be a properly constituted council meeting.

      Delete
  3. Obsever22 May 2020 at 23:52

    Anti MDCA rubish as always. Let's wait till the dust settles then we shall see just how hollow your analyses are. You need to learn political dynamics before misapplying legal tenets to political matters. Start with true saying, "laws were made for the people but people were not made for laws". This is politics 101. Rules in voluntary orgs are meant only to facilitate order, transparency and accountability but not meant to prevent an org from accomplishing its objective. Rules made by fallible men are themselves fallible hence it may be neccesary to tweak them along the way so long the majority condone such behaviour. This happens even in govts, remember the land invasions were only made legal by the Land reform act well into the so called 3rd chimurenga. Khupe would have been the worst opposition candidate in history given our political landscape where society is not yet read for a female president, let alone an unmarried one from a minority tribe. This sounds tribal and all but I am merely stating the truth and you know it, actually I wish society would move away from such discrimination but in politics you second guess focus groups at your own peril.Your ultra constituonalism is at best theoretical but not practical especially in political arena and unless all this is part of your Phd research work, you're best advised to take it lite

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    Replies
    1. Unknown23 May 2020 at 00:08

      You are pathetic, you're surely advocating for lawlessness in the name of populism hahaha Gara pasi shaz you don't have anything to offer

      Delete
    2. Obsever23 May 2020 at 01:03

      Ok chero ndikagara pasi kwacho but that won't change the truth. The same courts quickly sanitised the illegal events of nov17 and now the same courts want to pull wool over our eyes by attempting to make an example of a minor constitutional infraction in a opposition party, we are not fooled there is a hidden hand behind the SC ruling. The courts are known to be compromised but they went to a new low with the bizzare ruling that cannot be reasonnably implemented without the SC first inventing a time machine. In future students of law will use this ruling as a case in learning how not to write court verdicts

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    3. ctaruvinga23 May 2020 at 02:14

      And in all this wind Hofisi deliberately avoids discussing ZEC the organisation that accepted MDC Alliance registration as a party for elections.

      Delete
    4. D.Tinashé Hofisi23 May 2020 at 09:35

      Thank you for reading. 'Rules were made for man' only if you do not adopt a written constitution with constitutional supremacy. Why do that if you plan to hide behind rules being made for man? You are saying the MDC used tribal and misogynistic considerations to violate its constitution and take incumbency from Khupe? Wow. Amazing

      Delete
    5. Obsever23 May 2020 at 12:10

      I admit once rules are placed on the board for everyone to read and follow it'll be unfair to disregard them at will or unilaterally change them overnight to diadvantage others, that famous part in Aimal farm "... but some animals are more equal than others " comes to mind. This unfortunatley is what MRT did and everyone in the rank and file of the party including those making noise today are complicit in that obvious illegality of 2016. Perhaps Chamisa & Mudzuri should have refused to take part in that unconstitutional act and even if they'd accept the poisoned.chalice, Mwonzora, Khupe et al should have voiced their opossition at the time as should have everyone else, but nobody did anything, making everyone in 2014 structures accomplicies by their silence. I beleive that the matter should be past the statue of limitation and the court ought not have entertained the suit on that basis alone. But that as it may the court chose to entertain the matter and determined the apparent infringement but my point is on how do we correct that act by MRT. Do we surely capitulate in the name of constituonalism, surely there must be another way other than surrendering to the SC verdict (without being contemptious to the SC authority), say political talks or other means. Following the SC is like driving into the river simply because that's what the GPS is showing.

      You spoke of the MDC using misogynistic and tribal considerations. While this is so earth shuttering and shocking to you, that has been the "unwritten rule" in politics in politics world over. In Nigeria they have a policy of alternating between Christian and Muslim Presidents. Other nations such as Lebanon actually have it written down that there must be a Christian President and a Muslim Prime Minister. Right here at home the Unity Accord literally places a "Shona" as leader and a Ndebele as deputy. No one may ever admit it to your face but that's the norm so don't get schocked its the politics of the land.

      Delete
    6. D.Tinashé Hofisi24 May 2020 at 16:07

      The way to solve it is to follow the SC and work with the Khupe side. I have read Unity Accord, it doesn't say anything about any ethnic group.

      Delete
  4. Unknown23 May 2020 at 00:04

    Very insightful indeed thank you Mr Hofisi. I therefore request to take some excerpts from this and cite you when I school those who do not want to read big dossiers.

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  5. Flixi23 May 2020 at 00:05

    very interesting analysis... you always try to be balanced which is good.

    ReplyDelete
  6. Unknown23 May 2020 at 01:10

    Zero balance here as always. The objective of your commentary has been diluted by your bias

    ReplyDelete
  7. Nkosiyazi Kan Kanjiri23 May 2020 at 01:37

    Thank you. I always wait for your insights. You never disappoint

    ReplyDelete
  8. Unknown23 May 2020 at 02:45

    I always enjoy reading your blogs Mr Hofisi..i also like it when you respond to readers. I agree with you in many aspects i just want to ask a few things

    1. According to this judgement.. can James Maridadi & Majome came back to participate in this extraordinary Congress? Since they are were part of the 2023 structures( if the answer is no since they have moved on and their participation will be a violation of the mdc constitution------.Can youths executive of the 2014 structures who are now over 35 years( mdc constitution says youth's executive should be under 35 years) participate in this extraordinary Congress as ordered by the court?? Is this not violations of the mdc constitution as well? Can a former member mdc 2014 party member who has moved to Zanu pf go back and vote at this extraordinary Congress?? Please that area is confusing me??. How will the extraordinary Congress be done without violating the mdc constitution

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    Replies
    1. D.Tinashé Hofisi23 May 2020 at 09:53

      This is a big questions I have not addressed: the question of so called 2014 party structures. People say the court ordered a freezing or reversal of time and I disagree. The court ordered the party to go for the extra-ordinary Congress under leadership or Thoko Khupe with Komichi as chair. MAYBE that means 2014 structures MAYBE it means current structures jettisoned with court's order. Either way, the party itself then sorts out that mess as it heads towards congress. The Court only said the violation must be remedied by going to Congress with Khupe as leader.

      Delete
    2. Unknown24 May 2020 at 00:15

      Thanks for the reply mukoma.. i wish someone should shad light on that area. I could e wrong but the supreme court did not say "2014 structures" ..this is where some people starts to talk of moot..for example the judgement says komichi is the chair..if you talk of 2014 structures Lovemore moyo was the chair..he resigned under the leadership of Chamisa....all actions by Chamisa were declared null and void...when you submit your resignation its either accepted or rejected..Chamisa leadership accepted Moyo's resignation which is now null and void as per the supreme court judgement! In other areas which is difficult for me is after the extraordinary Congress the mdc will have a President...the same President will have to work with the same National council.....the then youth Chair is no longer 35 as prescribed by the mdc constitution..and that person cannot continue representing the young people in mdc by virtue of the mdc constitution...how then does the supreme court order the very same person to represent youths at this extraordinary Congress......this judgement is now becoming something else

      Delete
    3. D.Tinashé Hofisi24 May 2020 at 16:10

      That is not the case. You lose membership upon sending written notice in terms of section 5.10(b) of the MDC-T Constitution. President does not need to accept. Lovemore Moyo has not become a member because Chamisa accepted his resignation, there is no need for acceptance under their constitution. If the person now cannot lead a structure from then the constitution guides the party in filling the position rather than act like a binding order of court can be ignored.

      Delete
    4. Unknown27 May 2020 at 16:34

      The case of 2014 structures is necessitated by the way an MDC Extra-Ordinary Congress is held. You at MDC an extraordinary congress is attended by delegates from the previous congress. That means if MDC is to call an EOC as in February 2018, it will have to be attended by the same delegates from the 2014 congress

      2) As for office bearers in the youth assembly being over 35 that's not a big deal because it always happens & the constitution allows. Put it this way, at congress anyone can run for office in the youth assembly at the age of 34. That means by the end of their 5 year term they'd have reached 39. Just before the Gweru congress, Happymore Chidziva was still leading the MDC youth assembly at 38

      Delete
  9. Unknown23 May 2020 at 03:11

    Thanks.But is the move wrong anyway ?

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  10. tlchigu23 May 2020 at 03:50

    Thank you chief. Apparently the argument in the main is that constitutionalism is something people like to talk about and be seen as representing,whereas if it is inconvenient, the same people have no problem treating the same constitution and constitutionalism as spots of bother to their political trajectories. Apparently it seems at every given stage there is a tendency to associate an ideal, such as the 'struggle' to be epitomized by one individual. So that gives rise to machinations of intrigue. People generally like to gravitate towards individuals upon whom they will also hinge their own fortunes. Our heritage is also not helpful. The constitution seems to be just a document which only the better educated can understand even at the expense of everybody else

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    Replies
    1. D.Tinashé Hofisi23 May 2020 at 09:49

      I agree with your assessment. It is a huge problem.

      Delete
  11. Elsy Shetterly23 May 2020 at 06:05

    Whom did Mwonzora consult before re-calling the MPs? From the day of SC judgement up to now, why does it seem as though he is acting an individual.

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    Replies
    1. D.Tinashé Hofisi23 May 2020 at 09:48

      He says he consulted party structures virtually.

      Delete
    2. Matundu23 May 2020 at 13:08

      Thanks for your very insightful and informative analysis. Indeed just as is a knife, useful to one who is about to cut some steak to eat but certainly not to one whose throat is about to be slashed...it's a hell of a weapon! Please keep your honest and balanced professional analysis. It is very useful. Especially during this covid19 lockdown....it sees us through with ease.

      Delete
  12. Unknown23 May 2020 at 22:05

    Insightful and informative indeed.Thank you

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  13. Heinz Klug24 May 2020 at 08:42

    Brilliantly written!

    ReplyDelete
  14. Unknown24 May 2020 at 10:03

    Well said Cde Hofisi

    ReplyDelete
  15. professor Matomu26 May 2020 at 00:07

    I only have 1 question for you Hofisi. How can 2 different parties be forced to be one party by court. Can we just use Zec criteria on party formation and parties that contested in 2018 election.

    ReplyDelete
  16. oscar madhume26 May 2020 at 00:53

    insightful

    ReplyDelete
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