Constitutional ramifications of Khupe Supreme Court judgement

The late MDC President Morgan Tsvangirai and one of his Deputies Nelson Chamisa

What implications arise from the Supreme Court judgment on Thokozani Khupe’s or Nelson Chamisa’s presidential legitimacy in the MDC-T? Essentially, we must maintain and strengthen the concept of social democracy. It started with Khupe calling the late MDC-T leader, Morgan Tsvangirai, to come down, or act constitutionally, when Tsvangirai appointed Chamisa and Elias Mudzuri as part of the vice-presidents (VPs) in the MDC-T. In that wake, the MDC-T’s inclination to social democracy was supposed to be retained for its democratic importance. The MDC-T (first under Tsvangirai and then Chamisa), its breakaway parties and other parties, including Zanu Ndonga and Transform Zimbabwe, then joined hands to form the MDC-Alliance. The intention was to use the Alliance as an election tool and governance framework in the event of a win over Zanu PF in the 2018 elections.

While the late Tsvangirai was the Alliance signatory on the part of the MDC-T, he was not able to participate in the 2018 elections owing to his passing-on. Chamisa, one of the two VPs perceived to have been improperly appointed by Tsvangirai, was elected as the MDC-Alliance president. To demonstrate that the MDC-Alliance was a political party as envisaged by the constitution of Zimbabwe (2013), Chamisa represented the Alliance with the more than 20 candidates in the 2018 harmonised elections. Notorious facts thus show that the participation of the MDC-Alliance in the election, and Chamisa’s subsequent electoral petition against President Emmerson Mnangagwa, demonstrated that the MDC-A considered itself a political party, never mind its hybrid status as a seven-member Alliance.

Historically, political parties can assume many labels. Those familiar with the French Revolution perhaps know various political clubs that include the Jacobins, Girondins and so forth. I shall not give more considerations of the identifying characteristics of political parties. I shall just emphasise that the Alliance status of the MDC explained why some presidential candidates like Joice Mujuru refused to join the Alliance on the basis that the MDC would have swallowed their party.

Speaking of the constitutional ramifications of the current judgment, I wish to say a few viewpoints about constitutional identity and democratic constitutionalism. They are, in my opinion, the most fundamental aspects that flow from the original MDC and MDC-T’s constitution (2014). The MDC-T’s constitutional identity is one of social democracy just like Zanu PF’s constitution points to natural justice. Zimbabwe’s constitution has many identities: cross-border, romanticised, Orwellian, parliamentary, popular, representative and deliberative democracy.

The constitution of the MDC-T is important in determining the rights of the leaders who succeeded Tsvangirai. Further, constitutionally-intoned, the Supreme Court’s findings on the legitimacy of the MDC-T under Khupe or Chamisa is to be measured in terms of the leadership that aligns its administrative machinery to the MDC-T constitution. This ultimately contributes to the stability of the legitimate MDC-T through the observance of the guiding constitutional principles on social democracy, which include solidarity, justice, equality, liberty, freedom, transparency, humble and obedient leadership and transformation of Zimbabwe.

Further, the character and culture of the MDC-T is constitutionally classified “as pro-poor, people-centred social democratic, non-racial and non-sexist movement, which firmly supports gender parity in all the organs of the party”. In this wake, the likely effect of the Supreme Court judgement is to cement the gendered constitutional dimensions the MDC-T aspired to, including the recognition of Khupe’s capability to lead at the helm of the party.

Khupe’s claim to the party’s helm is dependent, however, on the entire MDC-T leadership’s preparedness to give legitimacy to the Supreme Court’s decision.

While Chamisa is unquestionably popular in the Alliance arrangement, it is incontrovertible that his administrative side of work is under the banner of the MDC-T. This factor may not appear to be a negligible detail from the perspective of the Supreme Court decision. From the perspective of safeguards against constitutional breaches and lack of legal certainty on dispute resolution, and from the standpoint of what I called constitutional identity above, Chamisa’s association with the MDC-T, in the Alliance, is indeed a detail which can assume decisive importance.

This is because the Supreme Court found Khupe to be the legitimate MDC-T leader. This, in my view, serves a double purpose or even a treble one: Firstly, the more Chamisa’s presidency in the Alliance depends on his appointment in the MDC-T, the less problematic it becomes for Khupe to deal with Chamisa’s political future in light of the current judgement. Secondly, the more Khupe finds Chamisa to be thriving in the Alliance under MDC-T associativity, the more danger there will be in Khupe’s assertive reaction to deal with Alliance members who benefited from the MDC-T by getting executive positions either in the MDC-Alliance or in Parliament. To improve her administrative machinery in the MDC-T, Khupe may be forced to adopt measures that promote the stability of the MDC-T party constitution, as far as such measures can be taken by a legitimate leader in terms of the MDC-constitution (2014).

Thirdly, even if the MDC-A was to be treated politically as if it is not a political party as proposed by some members like Douglas Mwonzora, or as a separate entity from MDC-T under Khupe, the MDC-Alliance is not wholly MDC-T. The MDC-T under Chamisa acted on Tsvangirai’s actions as a signatory to the Alliance.

Chamisa, acting under the MDC-T constitution, became the individual who possessed the leadership legitimacy to reorganise the MDC-T after Tsvangirai’s demise.

This takes me to a strange provision in the MDC-T constitution, Article 9 (2) (b), which obligates the deputy president to act on behalf of the president whenever the president is absent from Zimbabwe or is for any reason unable to perform his or her powers, functions or administrative duties (underlining is intentionally made). This constitutional provision can be used to point to the “defects” of Khupe’s legitimacy by operation of the constitution.

It was altogether technically impossible for Khupe to reorganise the administrative machinery of the MDC-T after Tsvangirai’s passing, especially under the conditions in which Chamisa found himself as the VP in Zimbabwe when Tsvangirai met his demise in South Africa. It was enough that in Tsvangirai’s passing, a presidential vacancy was created. Khupe and Mudzuri, both VPs, were outside the borders of Zimbabwe at one point. Chamisa thus could reorganise the administrative machinery of the MDC-T as the acting president, by operation of the MDC constitution.

l Sharon Hofisi is a lawyer contactable at: sharonhofii@gmail.com, This article was first published here by The Standard