Twists and turns in MDC wrangle ahead of High Court ruling

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.

  1. ‘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 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.

  1. 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.

  1. 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.

  1. 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.

D.Tinashe Hofisi