The former advisor to late MDC president Mr Morgan Tsvangirai has suggested that his ex-boss in 2016 ignored advice on the illegality of the appointment of Mr Nelson Chamisa and Engineer Elias Mudzuri as his deputies.

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Commenting on the Supreme Court judgment made against current MDC leader Nelson Chamisa in an article “Critical Analysis of the Supreme Court Judgment” at the weekend, Alex Magaisa said Tsvangirai did not heed the advice given after appointing Chamisa and Eng Mudzuri.

Magaisa’s comment comes despite the fact that Tsvangirai did this using a clear constitutional amendment.

The MDC Constitution was changed 4 times between 2008 and 2016. In 2009, two amendments were approved to the effect that removed term limits on Tsvangirai who was supposed to step down by the year 2011.

In 2014, another amendment was effected which dethroned the party’s Secretary General of powers of succession (replacing the President).

In 2016, the MDC -T party changed the constitution again this time to give Tsvangirai powers to appoint deputies. Thokozani Khupe’s party would 2 years later remove this clause saying it created a one centre of power, resulting in a leadership dispute blamed for the split with Nelson Chamisa’s party. Khupe’s secretary-general, Nixon Nyikadzino has said the Khupe-led MDC-T has since amended the party constitution to do away with the one centre of power he says was abused by the late Tsvangirai.

“Also, we are simply giving back powers of constitutional amendments to the congress. We are simply ensuring that we do not have a one centre of power in the constitution of the MDC-T,” said Nyikadzino.

Magaisa whose analysis has been relied upon by the Emmerson Mnangagwa state media, commented criticising his own boss. He is not new to attacking his senior and in 2014, he loudly claimed he was same level with the man he worked for, Tsvangirai, and was paid a huge lumpsum including perks. (See his article reprinted below).

This time Magaisa now claims Tsvangirai’s appointment of two deputies, Nelson Chamisa and Elias Mudzuri was illegal, saying it was a clash of politics and law.

As Khupe's Sec General says it was perfectly constitutional (2016 amendment), Alex Magaisa who has in writing loudly claimed he was same level with Tsvangirai while working as his advisor, says Chamisa @nelsonchamisa 's appointment by Tsvangirai was illegal | WHO IS LYING?

— ZimEye (@ZimEye) April 7, 2020

Back then, he did not publicly criticise the move which Khupe’s party confirms was via a constitutional amendment now needing to be repealed

“Technically, it is difficult to fault the finding concerning the 2016 appointments. Questions were raised at the time of the appointments (including in this column) but the advice was not heeded. If supposing that a challenge had been successfully brought to court at the time, there is every chance that a court might have reversed the appointments,” writes Magaisa.

He continues saying:

“Those of us who raised caution in 2016 derive no pleasure at the turn of events. Another lesson is the problem of not challenging leaders when they are wrong.”

He says the outcome of the case brought to the fore the clash between law and politics.

“Any lawyer who has worked in politics or with politicians understands the difficulty of persuading politicians when laws stand in the way of political objectives. Politicians know they must follow the law, but they also know that their stock-in-trade is to make political decisions to drive political objectives.

“Advisers know that politicians must follow the law but they are also sensitive to the realities of political life. Sometimes decisions just have to be made.

“. . . As it has turned out, Tsvangirai’s decision was legally incorrect, as the courts have established, but if he were around today, he would probably still be sure that he took the right political decision. If you ask his many supporters, they also still believe it was the correct political move particularly given the direction that his would-be successors have taken since his death,” adds Magaisa.

“. . . Likewise, Chamisa’s ascendancy to the leadership may have been legally deficient as the courts have stated, but his multitude of supporters remain convinced that it was the right political move,” said Magaisa.

While Magaisa has focused on this, other scholars said there is no problem and no need for confusion. The South Africa based Legal expert Dr Tapiwa Shumba said a political party has its legs at the Zimbabwe Electoral Commission. Below was his full text:

By Dr Tapiwa Shumba | There is no reason for any confusion. It is the MDC trading politically as MDC Alliance. It’s been like that ever since. We were MDC trading as MDC-T and noone ever asked why everything about us was still MDC. Noone has ever seen an MDC-T constitution. We always celebrated MDC Anniversary and used MDC in our communications. It has always been MDC but MDC T started as far back as 2008 (before elections).

It’s a choice we make to connect to our history and traditions as we continue to renew, transform and grow on the other hand. It is the transacting name, which is the most relevant in Zimbabwe political context, that changes depending on the electoral market and dynamics. That’s why there is nothing trading as MDC currently. There is no MDC Councillor or MP. Many people don’t understand that MDC is now almost like our nickname or better still mutupo/totem in the Zim political context. Riri pachitupa now is MDC Alliance – it used to be MDC-T. Where our identity is requested for official reasons i.e ZEC and Parliament, Council we use the official name for the electoral cycle – now MDC Alliance. Hakuna chinhu chinonzi MDC kwese ikoko.

I say this because I see people asking.
1) Where is the MDC Alliance Consitution saka? (In fact you are not required to have any constitution in Zim).
2. Why did you celebrate 20 years Anniversary?
3. Why did you have 5th Congress?
4. Why are you stil using Harvest House HQ.

Until you understand that in Zimbabwe a Party only exists at ZEC, Parliament and Government you will continue to get confused about the MDC and MDC Alliance, the former being a street name at the latter being an official name. We will always officially transform to adapt to the political and electoral realities of the day but the soul will remain MDC, yet officially speaking, the MDC (our MDC) ceased to exist as an official electoral entity in 2008. The official MDC-T was abandoned when Thokozani Khupe abused it.

The transformation that takes place with the MDC in every electoral cycle is the fundamental reason why it is first class nonsense for anyone to say the Party must revert to a pre-electoral state. Pre-electoral state of the MDC are footsteps, hakuna chinhu, kunosara mutupo iwoyu unonzi MDC chete. That’s why there is this confusion, yet in truth, there is nothing new in the transformation of political parties. Consider this question – how old is ZANU-PF – and what is ZANU in all this – does ZANU-PF say it started in 1987 – but why do they claim and celebrate the 70s heroes and victories of ZANU when ZANU-PF started in 1987? Lastly, don’t be stupid.

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