In “With or without Khupe, red army will march on” Whitlaw Mugwiji provokes elementary questions about political analysis and objectivity.
By Jackson Muzivi
Not so much because of his conclusion but rather his attempt to project it as a forgone conclusion of the fate that awaits only Dr Khupe if she remains opposed to developments in the party.
It is common cause nobody is bigger than the party and even the demise of iconic founding President Morgan Tsvangirai whom nobody dared challenge in an electoral contest has not stopped the so called Red army’s forward march albeit in fits and stutters evidenced by current acrimony in its ranks.
It is not about the march continuing but rather the destination of the march that is of interest to me.
Has the MDC morphed into a generational gladiator political arena or is it still a worker and pro-poor social democratic institution with the muscle and appeal for the oppressed.
If the red march is to get to its destination then surely it must be marching within a defined road map which at present it is not if you ask me.
The argument that people must not expect the MDC to behave like a church has no place in this. Nobody does anywhere. Most however agree that it must behave like a mature political party with values, principles, vision and objectives.
Power contests without defined rules degenerate into dog eat dog fiascos that devour even their most ardent proponents and pursuers.
That Nelson Chamisa has won the political debate in the MDC-T succession wrangle or not is not the issue that we must waste time on. Rather what the win or loss means to the would be beneficiaries should.
Securing the backing of a party National Council would indeed be a monumental achievement if the National Council was unanimous in so doing and it’s backing Constitutional.
Hitherto we are all too familiar with the claims of such backing by the Professor Welsman Ncube (2005) and Tendai Biti/ Steers Mangoma (2014) revolts and their performance without Congressional backup and ratification.
History has a tendency of repeating itself with embarrassing and unexpected outcomes.
What may seem to be support of National structures at face value maybe the same camouflage that Nelson Chamisa is frightened of having been once the victim of the very same structures on 2 November 2014 despite having set them up and led them into the 2013 elections.
Put simply he does not trust those structures an iota hence his concentration of political mobilisation at the top in a party that has always had a bottoms up decision making approach.
At this moment the same party structures have a standing resolution not to participate in any elections unless specific and tangible reforms have been implemented yet for all intends and purposes the said National Council has resolved on participating without a Congressional say so.
If he trusted those structures and was firmly assured of their support the death of Tsvangirai and the opportunity it presented to convene an Extraordinary Congress ought to have motivated him to prod the National Council to convene Congress without any further ado.
But he knows that with 11 out of 12 Provincial nominations for the position of Secretary General he was walloped by a rank outsider Douglas Mwonzora at the 2014 Congress and relegated to an ordinary card carrying member until he was rescued by the very person many believed had rigged Mwonzvora’s victory.
The surprise of that loss is still fresh in his mind and has not been diminished by the fact that at the Extraordinary Congress to replace a departed President anyone can be nominated from the floor to contest as long as their membership meets criteria set out for election into National structures
The control of Party Headquarters using paid hooligans is most disconcerting for not only Chamisa but many members who are forced to submit to Chamisa’s imposition as Party President or be denied access.
For a democratic party, that is most shocking by a member to pick as an example of control. Force subdues dissent and bottles it until an opportunity arises for release in safety.
The assertion that a deputy party president Dr Thokozani Khupe entertains plans wrestle power from an appointed Vice President reduces the argument to uninformed levels as the Constitution does not presuppose that. If upheld and defended by all members A VP would never be equated to a DP..
To add to that absurdity allegations that she failed to attend party meetings presumably for no apparent reasons is sold as the truth when in effect it is pure hogwash. Yes she refused to attend meetings where her participation would be at the pleasure of the so called unelected Vanguard, and that was a reasonable excuse.
Deputy Presidents are not elected to rubber stamp Presidents. They are elected to advise the President and assist in formulating policies for party direction.
The appointment of both Chamisa and Mudzuri as Vice presidents was not motivated by her absence but rather by Tsvangirai’s frequent absence due to illness that was overburdening the DP. The attempt to rewrite history is clearly contemptuous.
Bulawayo South MP Eddie Cross or anyone else can conclude that “she is fighting a lost battle” but that does not validate the conclusion if it is founded on fallacies above in contravention of the Constitutional order we all must cherish and defend at all times.
Some of the sweeping statements about Chamisa’s control of the keys to Parliament and Council without a shred of evidence that he holds such keys and has been refusing or failing to unlock the same doors are pathetic and laughable.
The intra party legal and political battles are complimentary rather than exclusive. Once you have won the one portion the other becomes retired.
Any Constitution is couched in legal language most laymen and highly literate people find difficult in understanding.
In trying to examine Constitutional clauses in isolation Mugwinji entangled himself in an interpretation cobweb that was always going to lead him to a compromised construct.
The constitution is best understood as the founding documentation of rules of engagement in the organisation it regulates.
Put in other words the Constitution brands the organisation it regulates by giving it a legal existence; name, spelling its mission, defining its super-ordinate objectives and bench marking the code of ethics values and acceptable conduct each member must exhibit in actions to attain the objectives.
In that regard therefore the starting point that could have helped the author reach a better informed decision demanded he read the Constitution’s preamble and purpose of the party then summarised it.
Thereafter it would have been much easier for him to show how each clause he analysed was applied and contributed or vitiated brand essence and thus aided resolution of or degenerated resolution of the impasse obtaining in the party.
Articles 1-5 of the Constitution were dedicated to define the origins, purpose values, ethos, principles, objectives and qualifications for members and the membership termination procedure and all decisions by the party must be in support of those clauses otherwise they are of no consequence illegal and counterproductive.
Within that understanding the party structured itself at Congress and reduced that in writing in the founding Constitution that has been progressively amended to meet changed values and circumstances in which the party operates.
Article 6.2 reproduced here sets out who is who in the party the detail of which is left out other than that Congress is the Ultimate Party organ.
6.2.1 The Congress shall be the supreme organ of the Party and shall be composed as follows:”
Appreciation of that clause is pertinent when interpreting any clause of the MDCT Constitution. The buck stops with the Congress in all matters MDCT.
Every member or organ of the party is subordinate to Congress and thus can only exercise power to the extent authorised it by Congress. This is critically important because misunderstandings of powers of the National Council are stemming from misunderstanding the mandatory effect of this clause.
Whatever the National Council does it cannot;
a. amend, suspend, vary, defer or alter Congress resolutions and the Constitution itself outside Congress (188.8.131.52.a as read with article 17.1, it can only implement )
b. postpone scheduled Congress and Extraordinary Congress dates 184.108.40.206.g
c. elect, reappoint and reassign Party Secretaries that are directly elected at Congress 220.127.116.11.k
d. fill any vacancy, by way of an election, in the National Council resignation, death or any other cause for Elected Provincial Representatives 18.104.22.168.l
e. remove and reassign functions of members of the National Executive without a unanimous decision made by a secret ballot of the National Council to remove or reassign the President, Deputy President, National Chairperson, Vice Chairperson, Secretary General, Organising Secretary and Treasurer General 22.214.171.124.m
f. preside and adjudicate over any dispute in respect of the interpretation of this Constitution 126.96.36.199
These are important resolutions already made by Congress which clauses cannot be grouped in Article 18.1 exceptions;
OVERSIGHTS AND OMISSIONS
18.1 In any place where the requirements of this Constitution cannot be satisfied because of an omission or oversight in draughtsmanship, or because a body provided for has not been established, or an officer provided for in this Constitution has not been elected or appointed, or because of a procedural problem; the National Council shall have the power to make such arrangements which, in their opinion, satisfy the spirit of this Constitution and shall seek approval for such arrangements at the next Congress. Interestingly, both parties are using the party constitution, one to question and the other to defend his appointment.
Clearly article 18 was inserted as a contingency to deal with unforeseen developments needing Congressional directives which are not dealt with in the ratified Constitution and makes it clear that such measures will be temporary interventions that can only become permanent after ratification by the next Congress
The importance of labouring on this becomes tacit and unambiguous in interrogating Mugwinji’s legal postulations.
Congress resolved in 2014 to elect a Deputy President not several Deputy Presidents in conformance with Article 9.2.1 which clause has been in the MDCT inaugural Constitution and has never been tempered with.
The 2014 Congress that was brought forward from the scheduled 2016 Congress to deal with the Biti/Mangoma insurrection at the infamous Mandel Training Centre attempted boardroom coup that Mugwinji backed to the hilt until it collapsed,
Congress actually reviewed the clause and upheld it when it dealt with the disclosure by the late President that he had been diagnosed to be afflicted with Colon Cancer and reinforced it by approving the President’s plea for help in his office by authorising him to appoint his Assistants other than the elected Deputy President.
Tsvangirai was pressured to appoint the authorised assistant by the National Council whereupon he went one better by appointing two assistants namely Elias Mudzuri and Nelson Chamisa.
He titled them Vice Presidents and justified the need for two to meet fair representation of two key party demographics namely party founders represented by Mudzuri, the Youth represented by Chamisa which he felt deserved representation in his office
The appointments were highly contested and Tsvangirai was saved by the National Council that approved the creation of the two VP positions pending Congress ratification. That political brinkmanship by Tsvangirai was challenged in the High Court which found in his favour that he had acted in accordance with the approval of the national Council authorized by Congress to increase the Presidential establishment and yet the applicants were not in any position to challenge decisions of the National Council as they we not representatives of members nor were they members in good standing.
This was a critical development in two respects. The National council was completing implementation of a Congress resolution.
The National Council did not vitiate clause 9.2.1 by creating additional Deputy President position but rather Vice Presidents. It was additionally a decision that upheld Article 188.8.131.52.k as read with articles 184.108.40.206. 9.2.1.b and 17.1.
Which trashes the contention by Mugwinji that debate anchored on Article 9.21.1 of the MDC-T constitution “is frivolous and a sheer waste of time” as it is in sync with both Articles9.2.1 that created one Deputy President post and that reads:
“In the event of the death or resignation of the President, the Deputy President assumes the role of Acting President, pending the holding of an Extra-Ordinary Congress that shall be held to elect a new President which Extra-Ordinary Congress to be held no later than a year from the death or resignation of the former President.”
Notwithstanding that consistency and clarity in Constitutional wording and context Mugwinji misdirected his thoughts by concluding that “the constitution is not clear on who should take over, since the party has three deputy presidents.”
Where he got three Deputy Presidents from remains unclear but he appears to believe the Constitution was amended sometime in 2016 by the National Council to create three Deputy President positions, which it was not.
And even it was amended as he claims, the amendment will be a nullity in terms of 17.1as read with Article 18;
“17.1 Any amendment to this Constitution shall require approval by at least two thirds of the delegates present and voting at Congress.”
But the most outrageous interpretation by Mugwinji must surely be his citation of Article 16 as the premise upon which the National Council is authorised to appoint Chamisa as substantive MDCT President.
“16.1 The National Council, notwithstanding anything contained herein shall have the absolute discretion of determining the manner and process of any selection including the power of making any appointment for any position.”
Not only does that Article contradict and supplant all Constitutional provisions if read in isolation, but it will also introduces an absurdity no reasonable Court will countenance
In context Article 16 was dealing with powers assigned to the National Council in dealing with the selection and appointment of election candidates sponsored by the party.
Obviously Mugwinji did not realise that the flow of wording in a Constitution matters and puts any Article into context.
Clearly the assertion that anyone who advances the legal argument is “attempting to discredit Chamisa’s appointment” is without merit and evidently outrageous.
What Mugwinji terms moral arguments are strong legal arguments any trained Legal Practitioner would advise his/her client to save money trying to argue against.
The Deputy MDCT President’s acting appointment in the absence of the President is a Constitutional prescription that remains in force today until it is amended.
Nullities do not overtake anything for they are nullities like the obvious breaches of the MDCT constitution by its National Council and the attempt to amend the Constitution outside Congress if Mugwinji’s claim is anything to go by.
Secondly given that contents of Article 9.21.1 remain in force and the Deputy President’s acting capacity in the absence of the President is automatic by operation of the constitution unless she specifically declines to so Act and delegates her Constitutional right to another the nullity of anyone claiming endorsement to act as President is self evident..
That the MDCT is broke is neither here nor there as there is no record that the party has been sequestrated or has applied for insolvency. And in any event what Congress has prescribed members must shoulder the costs of implementation.
That Obert Gutu has been suspended is another political fallacy without evidence as he personally denies that and rightly points that he cannot be suspended by the National Council as his position is immunized by Article 6 of the Constitution and likewise the Deputy President.
If this is the quality of advice the national Council heeded to arrive at its wayward decisions of late then they better pause and review then correct the anomalies and save our party from these embarrassing situations based on advice from bush lawyers like me and overzealous members with limited vision as to the attendant consequences from horrible decision making
Evidently the so called red army’s march is a march to doomsday