The Supreme Court ruling on the MDC leadership wrangle sparked a national debate on parties, constitutions and congresses. This post adds to that debate by answering ten (10) questions which assess the significance of the various formations of the MDC.
All assertions about the MDC Alliance agreement are in terms of the version I have been availed.
In a broad sense, a political party is any group of persons representing themselves as such. Zimbabwe has a liberal approach to political party formation and University of Zimbabwe Professor, Eldred Masunungure remarked that it might be easier to form a political party than open a bank account. There is no registry of political parties.
Whilst the Constitution protects the right to form and be part of a party, there are no requirements for their recognition. A political party includes any political organization according to the Electoral Act, whilst the Political Parties Finance Act defines it as any association of persons seeking election to a local authority or Parliament.
Many parties notify ZEC of their existence, but this is not a legal requirement. The nomination court is another process through which parties register their existence, and it is only the parties which gain at least 5% of the vote in the general election which qualify for public funding. However, those political parties which do not succeed at or participate in elections still enjoy constitutional protection.
- What about Congress, Constitutions and Party Membership?
These depend on the party concerned. Every political party has some form of constitutive rules, written or unwritten. Some have an active membership with elective powers at congresses, conferences or conventions. So called cadre parties are more elite and exclusive, whilst mass parties have active grassroots membership.
The main parties in the USA constitute cadre parties together with the Conservative Party in the UK. Most Zimbabwean parties are mass parties with written constitutions. This makes constitutional rules identifiable, durable, supreme and binding. Whilst a written constitution is helpful, it is not necessary for the formation of a political party.
- Why do most parties have written constitutions if they are only optional?
It can be used as evidence that a party is formally constituted. Further, constitutions are important in determining whether a party has ceased to exist and dealing with attendant consequences in respect of assets and liabilities.
Written constitutions can also be evidence of commitment to good governance, limited power and rule-based accountability. Even if certain rules are not followed, their enactment serves as evidence of commitment.
For instance, both major parties are guilty of repeatedly ignoring the constitutional imperatives for gender balance in candidate selection. Be that as it may, the enactment of such provisions is touted as proof of gender based bona fides. In this way, written constitutions are an opportunity to hold leaders accountable to binding provisions even if they may only be committed at a superficial level.
- Was the MDC Alliance a political party?
Yes and no. We have already noted that neither a constitution nor congress or individual membership is a requisite for political party recognition. The MDC Alliance was a special kind of party: a party of parties. To the extent that it was an association of persons seeking election, it was a political party. Then MDC Secretary General Douglas Mwonzora acknowledged as much.
Many coalitions participated in the 2018 elections from the Joyce Mujuru led People’s Rainbow Coalition (PRC) to Elton Mangoma’s Coalition of Democrats (CODE). These were not stand-alone political parties, but composite structures which assumed the form of political parties in certain circumstances. Internally, the MDC Alliance remained a loose pact of individual parties though externally it was a party for purposes of electoral competition.
- So that means Advocate Chamisa is rightly the President of the MDC Alliance?
There is no president of the MDC Alliance. In terms of the Alliance agreement, there is a presidential candidate for the national elections, who also chairs the Coalition Principals Forum prior to elections.
The Alliance was modeled like the Republican and Democratic parties in the USA which have no presidents but a rotating cast of nominees for election to the national presidency.
In clause iii, the agreement calls itself “a non-compete pre-election alliance and post election [sic] Coalition Government.” It was to last five years in the event of an MDC Alliance victory, failing which it was subject to review. This review could have resulted in the decision to reconfigure the pre-election pact into a post-election stand-alone political party.
Such review would have done away with the strict independence of the seven constituent parties under clause 2.0 and paved the way for creation of an Alliance president.
Alliance partners would have either dissolved or integrated their structures to form a new party under the banner of the MDC Alliance. This is the version of events propagated by Chamisa’s party. It would lend credence to the argument that the MDC Alliance party was never subject to any litigation and therefore cannot be bound by the Supreme Court ruling.
- What did MDC officials say about the Alliance?
The MDC’s version of events would be plausible if senior MDC officials had so stated after elections. Instead, they suggested that the Alliance was over and its partners were free to join the MDC or any other party. Rather than form or join a new party, they insisted that partners were to join the already existing MDC, akin to the way PF ZAPU (re)joined ZANU PF.
On 11 September 2018, MDC presidential spokesperson Dr. Nkululeko Sibanda made announcements in the company of then party spokesperson, Advocate Jacob Mafume. The video is still available for viewing. He announced that Advocate Chamisa was “integrating the MDC Alliance into the MDC.” Dr. Sibanda was emphatic that the name of the party was not the MDC Alliance, but the MDC;
It is important that we underline the fact that the name of the party is the MDC. Both MDC-T, MDC Alliance and other names that have been used in the past were simply election vehicles and not the legal names of the party. As per our constitution, the party that everybody is integrating into is the MDC.
Thus, the MDC was aware that references to the MDC-T or MDC Alliance were variants adopted for elections rather than internal administrative purposes. Whether led by Professor Welshman Ncube, Morgan Tsvangirai, Advocate Chamisa or Dr. Khupe, the party remained the MDC in its various formations. Thus, a conscious decision was made to abandon the new title of the MDC Alliance whilst encouraging Alliance partners to join the already existing and much larger MDC.
In the same press conference, journalists asked the effect of such choice on the court case challenging the use of MDC intellectual property. Rather than claim that it involved a different party distinct from the new MDC Alliance party, Advocate Mafume simply maintained that the MDC owns patents to all MDC variants including MDC-T.
Journalists even asked if reverting to the MDC did not leave parliamentarians vulnerable to recall since they represent the MDC Alliance. This is consistent with then Deputy Treasurer General, Chalton Hwende’s 7 August 2018 tweet confirming that the Alliance was only for the elections, with individual parties now “free to join political parties of their choice.”
Even more importantly, this version is supported by the public statement issued on or around 3 May 2019 by a former Alliance partner, Jacob Ngarivhume of Transform Zimbabwe;
It is common cause that the alliance did not succeed to dislodge the military-backed Zanu PF government and by operation of law, the alliance was dissolved, with each party reverting to its position prior to August 5, 2017…
Negotiations were opened for the amalgamation of the alliance partners into one political formation. This would entail the alliance partners dissolving their party structures and joining into one party under the name and style of MDC.
The position by senior MDC officials, as corroborated by Alliance partners, seems abundantly clear. The Alliance was no longer extant, with partners free to join parties of their choice or revert to their individual outfits.
- So what really happened?
Though highly implausible, it remains possible that leaders of the MDC were at variance with their top lieutenants, official spokespersons and alliance partners. They could have desired a new party called the MDC Alliance but failed to convey this with sufficient clarity.
Fortunately, this can be ascertained. The Alliance agreement contained an integration clause making it the complete and final agreement of the parties.
In terms of clause 7.3, it can only be varied by written instruction executed by all parties. The decision to transform the pre-election pact into a post-election stand-alone party would need to have been written and executed by all parties. Evidence of such written instruction would suffice to prove the claims made by Chamisa’s party.
What is more likely is that the MDC and its Alliance partners knew that failure to win the election meant the demise of their arrangement. They entertained the idea of amalgamation, but only into the existing MDC and not a new party with seven constituent members.
Even though the Alliance was over as pact, the MDC understood its representation in parliament and local authorities as a license to the same dual existence they had with the moniker MDC-T. They were the MDC Alliance in electoral representation but the MDC in internal party business.
The adverse ruling from the Supreme Court heightened the need to not only embrace the Alliance identity, but insist that it also sufficed for internal party administration and thus escape constitutional accountability. There is, of course, nothing to stop them from constituting themselves as the MDC Alliance.
What is more difficult is to convince the world that the MDC Alliance party elected its leadership at a congress in Gweru, even though it was styled the 5th national MDC Congress. The readmission of members including Professor Welshman Ncube and Tendai Biti at that Congress is at odds with the notion of an event by a newly created party.
If the names MDC and MDC Alliance are this interchangeable, then the latter variant would not be sufficient cover from the court’s order as it would render the two synonymous. It would also be at odds with the court’s finding that the the Congress in Gweru was held by the party that was before the court, that is, the MDC.
- But Khupe held her own Congress!
The MDC Constitution requires an extra-ordinary congress to replace its President within a year of the vacancy occurring. The deadline for such congress was 15 February 2019. Dr. Khupe held the extra-ordinary congress on 22 April 2018 and claimed to be the legitimate MDC leader under the moniker of MDC-T. The Chamisa led MDC did not hold an extra-ordinary congress even when it became due and were so ordered by the High Court.
Instead, they held their 5th elective congress from 24 to 26 May 2019. In their resolutions, they stated that they believed they had discharged the obligation in the High Court order. The Supreme Court disagreed. The High Court order is yet to be fulfilled and Chamisa’s party was ordered to hold an extra-ordinary congress under the legitimate Acting President.
Many have asked why Dr. Khupe’s congress was not under similar scrutiny. This is because her formation was never before the Court. Those who watched the court proceedings will recall the judges repeatedly asking lawyers the significance of Dr. Khupe’s own congress.
The court seemed willing to pronounce on the matter, but lacked the factual basis to do so. The lawyers said they did not have instructions on that point. That left the court to deal with the propriety of the MDC’s claims in light of its constitution and the High Court’s findings.
Holding an extra-ordinary congress was not found to be evidence of relinquishing interests established by the constitution. The alternative relief from the Court, in terms of which the National Chairperson calls for the extra-ordinary congress, accounts for the Court’s failure to ascertain whether Dr.Khupe had indeed relinquished her interest in the larger MDC.
This leads to the awkward, but not illegal, result of Dr.Khupe being the substantial leader of one formation and interim leader of another.
- Does this automatically make Dr.Khupe the leader of the MDC Alliance?
It does not. As highlighted before, there is no president of the Alliance. The Alliance agreement states that the presidential candidate is chosen by the parties.
That candidate was Morgan Tsvangirai and after his death, the alliance partners likely chose Advocate Chamisa in terms of clause 3(b) as the most popular candidate rather than through a process of automatic elevation. There is no clause supporting the assertion that the leader of the larger MDC is an ex officio leader of the MDC Alliance.
10.So Dr.Khupe cannot recall MP’s since she is not the leader of the MDC Alliance?
Not exactly. It does not appear as though she needs to be the MDC Alliance leader to have a right of recall. The Alliance has no real leader. Even though the Alliance agreement does not have a clear clause dealing with parliamentary recall, this is built into clause 4.1.7:
the parties shall not have a right of recall of members of the executive without the consent of the President except when the respective party has recalled them from parliament…
This shows that the Alliance agreement retained the power of recall within the individual parties. In the contemplation of the agreement, the individual party could recall a member of the executive without the consent of the national president if such member had also been recalled from parliament.
Since Dr.Khupe is the Acting President of a party to the Alliance agreement, she has the power to recall members of parliament from that party to the agreement. Whilst the National Constitution says it is the party on whose ticket one was elected that can activate recall, in this case the electing party was a party of parties.
That party of parties reserved the right of recall to the individual parties, and the individual party in this case would be the MDC under her interim leadership.
Further, the courts have said that once the Speaker of Parliament or President of the Senate receives a letter of recall, they have no discretion and are bound to declare such seat vacant. Thus, if Dr.Khupe were to recall members of parliament, they would stand to lose their seats unless they secure preventative court orders prior to such eventuality.
Conclusion
This drawn out saga has exposed the fiction of formal constitutional rules. It is presumed that people join political parties in part because they agree with the party’s ideology and constitutional provisions, which the courts defend for their benefit.
However, our parties are personality driven institutions. Constitutions and party congresses are established to enable rather than limit popular power. Like the laity which follow the clergyman no matter his theology, we will support the popular candidate no matter their ideology.
The reaction to constitutional breach is not outrage but more fervent support. Needless to say, this is a very dangerous form of politics. It breeds an animated, zealous, almost cultic, following at the expense of democratic checks and balances.
This judgement will fire up Advocate Nelson Chamisa’s base. Chamisa’s camp, and their response of subtle legal subterfuge, is uniquely attuned to this demographic. This will be sufficient for him to hold the base and remain party president, whatever that party maybe.
However, to make the leap from party to national to president, Advocate Chamisa will need at least three more demographics: new voters, self-styled independent voters and moderates from other parties.
Elevation to party leadership through questionable means might be excusable by party faithful, but continued defense of that unfortunate episode will not project the statesman-like aura needed to broaden his coalition and beat ZANU PF. It will take hard decisions in these uncertain times to transform the Advocate’s candidacy from highly formidable to truly electable.
David Tinashe Hofisi is a Doctoral Candidate, Human Rights Lawyer, YALI Mandela Washington Fellow, ILS Law and Society Graduate Fellow, Musician, Blogger. You can visit his blog: D.Tinashe Hofisi: Reflections
