This post explores the aftermath of the Supreme Court decision against the MDC.
Whilst the judgment is binding on the MDC, its members have insisted on the MDC Alliance (MDC-A) identity and assert that the judgment is only binding on the MDC-T.
This is an instance of political mobilization to contest the meaning of judicial outcomes. It poses interesting questions about the main opposition party’s relationship with the courts. These are dealt with in just five sub-headings:
1. Who is the MDC-T?
The MDC-T is, according to the Chamisa camp, the party formerly led by Morgan Tsvangirai and currently under the stewardship of Dr. Thokozani Khupe.
The court judgement only refers to the MDC, but prominent MDC members argue that since the pleadings referred to the MDC-T, this is the entity bound by the judgement. They also claim that, since Advocate Chamisa and others ran on the MDC-A ticket, they are not bound by the judgement.
The concession that the party formerly led by the late Morgan Tsvangirai is not the one led by Advocate Chamisa is highly remarkable.
Prior to the 2018 elections, Advocate Chamisa’s party sued Dr.Khupe and others for use of the name MDC-T. This matter was supposed to be decided in the High Court, but was withdrawn.
Thus, there remained two factions of the MDC-T, something that Dr. Alex Magaisa acknowledges. Therefore, the MDC-T was not singularly a reference to Dr.Khupe’s party.
This explains why, in spite of Dr. Khupe’s non-participation in the MDC Alliance, the Alliance Agreement specifically includes a party called the MDC-T.
So two MDC-T’s participated in the elections, one as part of an alliance and the other independently. After elections, the MDC Alliance partners reverted to their parties with Advocate Chamisa reverting to his own MDC-T.
Two former Alliance partners joined Chamisa’s MDC-T and called themselves the MDC.
There was no new political party. Tendai Biti’s PDP and Professor Welshman Ncube’s MDC dissolved their structures to join the MDC-T.
For this reason, Chamisa’s MDC-T did not dissolve any structures. As the then party spokesperson Jacob Mafume explained, it was like a company merger.
It was not akin to the creation of a new company. The MDC Congress Resolution Number 23 readmitting ‘former party cadres’ would become an absurdity in the context of a new political party – there is not readmission into new entities.
This MDC, which sought to stop Dr.Khupe from using the title MDC-T, is the same party which self-identified as the MDC-T in the MDC Alliance Agreement. It is the bigger faction of the MDC-T and was thus a party to the proceedings even by the MDC members’ current assertions.
The attempted sleight of hand by the MDC has left them claiming that the MDC Alliance party participated in elections even though its constitutive and elective congress was only held thereafter.
2. Why the Coronavirus judgment?
Questions have been raised regarding the timing of the judgment. The suggestion is that the COVID19 pandemic and national lockdown were used as a cover by the courts.
Further, it is argued that since all matters other than urgent cases were postponed, there was no justification for handing down the judgment.
This is at odds with the fact that courts around the world have continued to hand down decisions.
In the week that this judgment was released, the Constitutional Court of Kosovo struck down the restriction of citizens’ freedom of movement during the pandemic, the Constitutional Court of Uganda invalidated legislation that gave the police powers to stop public gatherings and protests, whilst the High Court of Singapore dismissed a challenge to the law which criminalizes homosexual acts between males.
This means the Zimbabwean Supreme Court is not an outlier in its continued delivery of judgements.
More specifically, the Practice Direction from the Chief Justice does not deal with delivery of judgements.
It covers filing of new cases, time limits for process and postponement of pending matters. Cases in which judgements are reserved are neither new cases nor subject to the same rules of time limits and postponements.
They are not the reason behind the practice direction and are not limited by its provisions. To this extent, the conduct of the court was consistent with both its practice direction and global trends.
3. Why the Bhasikiti inconsistency?
There is also the view that the case of Dr. Kudakwashe Bhasikiti exposes judicial inconsistency.
This is because both cases challenged decisions by their respective parties. Dr. Bhasikiti was ordered to exhaust internal remedies in ZANU PF even though he argued the party organs would be biased against him. On the other hand, Mashavira was told he need not exhaust internal remedies for the same reason proffered to Bhasikiti, that is, institutional bias.
The High Court already indicated that the Bhasikiti case is distinguishable from that of Mashavira. Dr. Bhasikiti only challenged the action by his party, and not the propriety of its leadership or the institutional legitimacy of his party.
He was only concerned with his own expulsion. In circumstances where the legitimacy of the party or its leadership is not in question, it is reasonable to demand that internal remedies are exhausted.
In the case of Mashavira, the legitimacy of top leadership was the subject of litigation. He was not only challenging party action, but incumbent party leadership.
This is not the same as challenging the action of a party whose leadership is accepted as legitimate. Disputed legitimacy casts a dark shadow over the propriety of such internal processes given their capacity to bring the leadership wrangle to bear. Further, the High Court stated that the Mashavira case also involved a declaration of rights, which could not be secured in an appeals tribunal.
Thus, when a party member is expelled they are still bound by the Bhasikiti rule to exhaust internal remedies unless the legitimacy of the party or its leadership is itself the subject of the legal challenge. This approximates to the rule in Jessie Majome vs ZBC when Constitutional Court stated that an applicant will be sent back to remedies provided in law unless the constitutionality of that other law is itself challenged.
4. ZANU PF hidden hand?
Perhaps there is, as suggested, a hidden ZANU PF agenda that has turned Douglas Mwonzora, Morgan Komichi and Dr. Khupe against Advocate Chamisa.
I am unable to confirm or deny this hypothesis. However, I have several points of inquiry: why would a character like Morgan Komichi, who sold his candidature for Vice Presidency singularly on his Abrahamic loyalty make a volte face against the leader he said he would never desert.
Priding himself in consistency and never leaving the party, he was entrusted as the MDC’s chief election agent in the 2013 and 2018 elections.
The same man who was arrested and convicted for his party related activities in each of the last two elections has suddenly warmed up to ZANU PF? Similarly, Douglas Mwonzora was repeatedly arrested, with one such incident resulting in the ‘Mugabe is a goblin’ judgement. He was also detained to derail his role in the COPAC constitution-making process and like Dr. Khupe, stood with Morgan Tsvangirai through each split from 2005 through to 2014.
There could be more to this than unseen ZANU PF shenanigans. Consider the effect of undermining elected positions through arbitrary appointments.
Even though Mwonzora defeated Chamisa at the 2014 MDC Congress and Dr. Khupe won the Deputy Presidency for the third time on the same occasion, they both witnessed the elevation of Chamisa and Mudzuri to the vice presidency notwithstanding the absence of electoral process.
This should be scrutinized in the context of preferential treatment of persons who previously left the party. Professor Welshman Ncube and Tendai Biti returned to the Alliance as principals on equal footing with Morgan Tsvangirai, then became Vice Presidents.
Morgan Komichi, for all his consistency, was left to publicly ask for assistance in spiritual healing.
Therefore, having witnessed preferential treatment of members who previously left the party, it is possible that key actors in the MDC are now drawn by the allure of similarly leaving the party to secure higher office via future coalition building.
5. The So What Question
Why does all this matter? Chamisa’s masses will rally behind him after all.
The name of the party will not change this reality. Though this may indeed be the Shakespearean rose which by any other name still smells as sweet, these questions remain relevant. As noted by the court, the MDC is a ruling party in waiting.
ZANU PF has already perfected the asvotwa ngaarutse approach to party and national politics. Perhaps the failure to reach common ground with Professor Welshman Ncube’s party ultimately hindered the MDC-T from securing the national presidency in 2008.
These are hard but necessary lessons. Even if Dr.Khupe does not command a huge following, espousing inclusivity would inspire many beyond her own base and bode well for party unity.
Further, relations with the judiciary have profound implications for good governance. We must consider the realities that would confront any possible MDC government. Judges do not lose office when there is a change in the national presidency.
Like ZANU PF in 1980, the MDC would face a bench whose appointment predates their incumbency and whose confrontation with their executive would be lauded as evidence of judicial independence.
How would they deal with the same judiciary they have consistently vilified? Would they purge the courts (as Mugabe did)? Would they resort to the same smears and counter narratives? Or would they suddenly become receptive of rulings contrary to their interest? Dr. Magaisa rightly calls out those who enabled Tsvangirai’s constitutional misfeasance.
We must not be similarly founding wanting.
It is not too late for the MDC to fashion itself as the party that accepts court decisions, even those they find disagreeable, for the sake of the rule of law.
This is crucially important because ultimately, the most vital part of the main opposition party’s title is not the suffix ‘T’ or ‘A’ but the preceding ‘D’ for democratic change.
Dr David Tinashe Hofisi writes in his own personal capacity