Zimbabwe Supreme Court Ruling on MDC and Future of Zimbabwe Democracy

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On the 31st of March, 2020, the Supreme Court of Zimbabwe delivered two judgements concerning the Movement for Democratic Change. One judgement related to the challenge lodged by the party on the legality of the Constitution of Zimbabwe Amendment No.1 of 2019.

By Douglas Mwonzora

In that judgement the Supreme Court ruled that the passing of the amendment to the Constitution of Zimbabwe to allow the President to appoint judges without them going through public interviews had not been regularly passed and therefore was null and void. The second judgement related to a dispute principally between MDC Gokwe District organising secretary, Elias Mashavira, and MDC president, Nelson Chamisa. In this case the Supreme Court ruled that the assumption of party presidency by Nelson Chamisa was ultra-vires the MDC constitution. It proceeded to order the party to convene its Extraordinary Congress for purposes of electing a substantive president to replace the late Morgan Tsvangirai, within a maximum of 4 months. It reinstated the leadership of the MDC as elected at its 4th Congress in 2014 to run the affairs of the party pending the holding of the Extraordinary Congress.

The MDC leadership was sharply divided on the judgement. One group urged the party to accept the judgement and hold the Extraordinary Congress in terms of the constitution. This way the party would deal with the party leadership question once and for all. The other group argued that the court was biased and had made a political judgement. At any rate the judgement did not affect them because the party had morphed into the MDC Alliance, so went the argument.

The reaction to the suggestion that the party obeys the court judgement was an avalanche of hate and a torrent of intolerance. The leaders in question were immediately labelled as state agents who had infiltrated the party to destabilize it. They were called charlatans, nincompoops, sell-outs and Judas Iscariot and summarily “expelled” from the party. On top of the hate language directed at them, attempts were made to recall these leaders from the Parliament of Zimbabwe where they are serving as Senators.

Death threats and other threats of violence have been made against these leaders with gangs reportedly hunting them down in Harare. The greater Zimbabwe body politic has also been sucked into this matter with opinion sharply divided on what the party should do in view of this judgement.

It must never be lost that the harsh reaction to the three senators emanate from the opinions they expressed in the aftermath of the judgement that touched on the legitimacy of the president of the party. The cruel and sad lesson is that while the national constitution and the party constitution provide for democracy, freedom of expression and freedom to make and hold opinion, these freedoms do not internally exist in political parties if that opinion or expression is not favourable to the leaders of the parties. This shows the general dearth of democracy in political parties. Some years back Dzikamai Mavhaire suggested that President Mugabe had outlived his usefulness and that he must step down. He was instantly expelled from Parliament and from Zanu PF.

Sometime ago, Prof Jonathan Moyo and his colleagues organized a meeting at Dinyane High School in Tsholotsho where they expressed their preference of Emerson Mnangagwa to take the position of vice president of Zanu PF and therefore of the country ahead of Joyce Mujuru. A ruthless and humiliating purge ensued resulting in Prof. Jonathan Moyo losing his cabinet post and party membership. Yet in the USA, for example, some legislators from President Trump’s Republican Party have openly differed with him without suffering any prejudice. In the UK for example some Labour Party MPs openly differed with their leader Jeremy Corbyn over some issues recently. They were not called names nor were they recalled from Parliament. The sad picture painted is that the democracy bar has been set very low for Africa. Yet, I dare say there is nothing African about impunity and dictatorship!

The second phenomenon to emerge in this matter is how far political parties are willing to stand by the very principles enshrined in their founding documents. In the case of the MDC its values and culture are set in articles 3 and 4 of the constitution. These values include freedom, justice, equality, solidarity and democracy. Over the years the MDC has been known to stand for constitutionalism and the rule of law. These are values that officials sing at rallies, press conferences and other public fora. However, this case has betrayed the disconnect between the values which are enshrined in the founding documents of the party and the actual practices within the political party.

It is submitted that for true democracy to thrive parties must stand by their founding values irrespective of the inconveniences to the leadership. Democracy is a painful enterprise which must not be a mere ideal but a way of life.

The Supreme Court did not dictate to the MDC on who the party should elect as its leader at the Extraordinary Congress. It left that duty to the MDC members themselves. However in the rancour and acrimony that followed the ruling, most members failed to realise that the Supreme Court had in fact confirmed their sovereign right to elect their own leaders. They failed to realize that the effect of the Supreme Court judgement was to set in motion a process through which the party would resolve the legitimacy question which is an albatross around the neck of its leader once and for all. It is obvious that some of the leaders fear this Congress because their candidate or candidates might lose.

However, true democrats must never fear to practice democracy on the basis that it could yield unfavourable results to them. This judgement also shows the sickness that has afflicted Zimbabwe’s body politic. The level of tolerance to divergent views is very low while the levels of hate and acrimony are too high. The net effect therefore is to discourage people from airing their true views for fear of reprisals from political leaders. Unfortunately this retains power in the rulers instead of power being in the hands of the masses which is an affront to real democracy.

The other interesting dimension is the “small man” and “big man” dichotomy in our politics. In this case, a district organizing secretary challenged the president of the party on a matter which he believed had a bearing on his right to choose a leader of his party. This as we have seen was at great personal risk. On two occasions, first in the High Court and second, in the Supreme Court the district organizing secretary won over his more powerful opponent. Instead of honouring his victory the party leaders were condescending towards him. There were suggestions that someone “bigger and more intelligent” had conceived this case for some political benefit. This attitude betrayed the patronage which has afflicted our political system. Assuming that people will become ignorant of their rights by virtue of their station in life is simply wrong. This explains why in dictatorships the masses are never respected. In a democracy the masses must always be respected.

The case underscores the distrust with which our judicial system is viewed by many people. Many people believed that the judiciary had been manipulated to pass a judgement not favourable to the appellants. What the proponents of this “manipulation view” temporarily chose to forget was that the entire hearing of the matter had been televised. It was objectively clear all along which way the judgement would go. Looking at this case, there was very little option on the judges but to make the judgement in the manner that they did. Sometimes litigants who lose fairly on the merits exploit the distrust that people have in the judicial system to explain away their loss or incompetence. This is buttressed by the fact that the other judgement in which the MDC won its case against a constitution amendment Act was conveniently ignored.

Having said this, there is a lot of work to be done to bring confidence in our institutions. It turns out that the three Senators’ argument that the MDC Alliance was not a political party but a group of independent and separate political parties, and that the Gweru Congress had not been an MDC Alliance Congress was later corroborated and vindicated by empirical evidence. This evidence included the Alliance agreement itself, the advertisement convening the Gweru congress, the campaign posters by various candidates, the resolutions of the congress, and the presidential statement made immediately after the congress. This evidence rebuffs the existence of what they now refer to as the MDC Alliance party not affected by the Supreme Court judgement.

It is submitted that in the noble march towards democracy, political values including constitutionalism and the respect court judgements must never be avoided. Lawlessness, anarchy and violence can never define a democratic revolution. The road to true democracy is long, thorny, odious and full of unpleasantness. Yet a democracy founded on true values is what forms the essence of the democratic struggle for which the Movement for Democratic Change was founded.