By Dr Tafara Shumba|I wish to clarify a few things about the High Court Judgement on Adv Nelson Chamisa’s Presidency. Nowhere in the judgement is there a reinstatement of Thokozani Khupe as the Deputy President and/or Acting President.
The Judgement does not install anyone as the Acting President because even if it wanted to, the court was mindful of the fact that Madam Khupe’s term would have expired on 15 February because the Acting capacity is for one year. It could not otherwise say failing to hold an Extra-Ordinary congress is unconstitutional but Madam Khupe’s stay beyond a year is constitutional. From 15 February, her own actions would have been null and void.
The Judgement does not say President Chamisa is barred from leading the MDC. It only declares what he has done as null and void. He will not be in contempt of Court if he goes and addresses a rally or chair any meeting of the MDC because he has not been barred – his actions will only be later declared by another court as null and void if the court thinks his chairing or participation in a meeting was illegal.
There are no appointments made by the President or Acting President in the MDC. The Constitution clearly states all the appointments were by the National Council. It if the function of the National Council to – 6.4.2 1 (k) To elect, reappoint and reassign Party Secretaries defined in clause 6.4.4.2 of this Constitution save those that are directly elected at Congress.
The upcoming MDC Congress was not convened by President Nelson Chamisa but by the National Council. See “6.2.4.1.A notice convening the Congress shall be sent to all Provinces and Districts by the Secretary General on the direction of the National Council at least 2 (two) months before the date of the Congress.”
The judgement does not stop the MDC from holding its congress as planned. It simply states what should have happened and what should happen but does not stop the MDC from curing itself. For example, the MDC can dissolve itself – who will call the extra-ordinary congress?
There is no difference between an Extra-Ordinary congress and a congress under the MDC Constitution except for the fact that Congress is once every five years but if you want to do another in between you call it an extra-ordinary congress
The court did not direct Madam Khupe to convene an Extra-Ordinary congress (they are just being mischievous). The court clearly directs the 1st Respondent (the MDC) to convene an Extra-Ordinary congress which it does among other means through – “6.2.5 An extra-ordinary Congress may be called: (a) By a simple majority vote of the National Council or two thirds vote of the National Executive which vote shall be conducted by a secret ballot.”
The court does not order the Party to return to 2014 structures. That is a another lie. All decisions made by the National Council and the Party except for those the court declared null and void remain valid. Those include all appointments re/assignments made by the National Council including expulsions and accepting resignations. Only two things were declared null and void by the court – the appointment of President Chamisa and Sen Mudzuri as deputy Presdents and the appointment of President Chamisa as President by the National Council.
The court does not say the Extra-Ordinary congress must be held in a month. It says after a month because of – “6.2.6 A notice convening an Extra-Ordinary Congress shall be sent to all members entitled to attend and to each branch by the National Council at least one month before the date of the meeting.” Of course that in itself is undue interference by court because the MDC Congress has the power to condone and ratify short notice periods because of – “6.2.3 The functions and Powers of Congress shall be: (f) To review, ratify, modify, alter or rescind any decision taken by any organ or official of the Party. (g) To condone any reasonable non-compliance with the time limits provided for in this Constitution, save for the time limits defined in Article 6.2.2. (6.2.2 is the timeline for when Congress must be held).
The Judgement does not say the MDC must close shop until it holds an extra-ordinary congress. It simply says, in terms of your constitution you were supposed to have an Extra-Ordinary within a year, now go and do it.
The MDC Congress already called by the National Council (who is the 1st respondent in the Judgement) has already called for a Congress that can address the Extra-Ordinary Congress. For example, the Congress can choose to “6.2.3 The functions and Powers of Congress shall be: (i) To dissolve the Party in terms of this Constitution.”
One option is for the National Chairperson Sen Thabitha Khumalo to convene national council because of –“ 9.3 National Chairperson 9.3.1 It shall be the duty of the National Chairperson to: (a) Perform the duties of the President’s office in the event that both the President and Deputy President are unable to perform the functions of the President’s office”.
National Council could postpone Congress from 24 may to around 15 June giving the Month Notice of an Extra-Ordinary congress.
The Extra-Ordinary Congress will do what congress would have done. Do not forget that the 2014 Congress was an Extra-Ordinary Congress because it was held before 5 years.
The other option is for the National Council to accept that the two months notice given for the Congress is in fact enough for an Extra-Ordinary congress because in any case notice for Extra-Ordinary Congress is one month.
Legally, the key person going forward now is Sen Thabitha Khumalo as the Party Chairperson.
This is a very soft Judgement and can easily be addressed, from a legal perspective.
The Judgement leaves everything in the hands of the MDC. The MDC should therefore simply proceed and conducts its business as usual. Lastly and quite curiously – The case cited The MDC, President Chamisa, Sen Mwonzora, Madam Khupe, Sen Mudzuri and Sen Komichi as respondents. Only Senator Komichi and President Chamisa responded. Madam Khupe, Sen Mudzuri and Sen Mwonzora may choose not to respond in their personal capacities if they feel the case favours their personal ambitions. It’s their right. But for Sen Mwonzora in particular, as the MDC Secretary General, no matter his personal feelings – (“the 9.5 Secretary-General – 9.5.1 The Secretary-General shall: (b) primarily be responsible for the efficient organisation and administration of the (e) Be the custodian of all important Party documents, lists, papers and records”) to fold his arms whilst the MDC Party is being sued raises serious questions for any credible organisation.
Dr/Adv Tapiwa Shumba in his personal capacity.