By A Correspondent- Advocate Thabani Mpofu has unpacked the various misconceptions and analysis regarding the Supreme Court ruling which nullified the presidency of opposition leader Nelson Chamisa.

We publish below the full text by Advocate Mpofu:

Various dishonest, insincere not to mention incompetent opinions have been bandied about in the aftermath of the Supreme Court judgment handed down during the lockdown. The matter has been approached with more haste than wisdom.

It is important that I deal, in part, with the anti Chamisa drivel, packaged as legal opinions, to which the public has been exposed. I will for purposes of this piece take those opinions at their highest and will show why they cannot possibly be correct. In many other respects, I will keep my powder dry for bigger game.

It has been suggested that the judgment of the Supreme Court affects President Chamisa’s position as leader of the MDC-Alliance in that it affects what are said to be processes of the MDC-T. This is utter rubbish!!

Ridiculousness unlocked

Let me enlist the aid of an example showing how ridiculous the proposition is. Suppose Mr Zorewa is employed by Fisheries (Private) Limited. Let us suppose further that a dispute erupts between him and his employer; his rejected position being that he is entitled to a promotion.

Let us also suppose that the dispute spills into courts; the matter is argued and judgment reserved. Let us finally suppose that during the intervening period Mr Zorewa dies, though the judgment comes out a few weeks after his death and is in his favour.

The judgment says Mr Zorewa “is” entitled to his promotion and given that the court is not dealing with the intervening circumstances of his death, simply orders that Fisheries (Private) Limited must elevate Zorewa, prepare fresh office space for him consistent with the new car he will drive and change his pay grade.

That judgment will not be worth the paper it is written on not because the authority of the court is being disdained but because the court speaks to an impossibility. It speaks to the past as though it spoke to the present. The proverbial horse has bolted.

The company no longer has anyone to promote even with all the will in the world. Neither can the company promote Mr Zorewa’s wife in his stead. There is no longer a concrete controversy to be arrested by the judgment in its operation. There is nothing on which it can take effect.

The Congress processes

Now when the High Court ordered the holding of an Extra-Ordinary Congress, the quintennial MDC congress had already become due. The judgment of the High Court was appealed, its effect suspended and Congress resultantly held. As it was entitled to do, the MDC passed certain resolutions by which it:

1 Formally adopted the position that Khupe and company had left the party in the first instance by reason of their dismissal therefrom, which dismissal has still not been challenged and also by reason of them having formed a rival political outfit.

Whilst noting the judgment of the High Court which was on appeal, ratified all decisions taken by Dr Morgan Tsvangirai in the appointment of additional Vice Presidents. At law, Congress could ratify even an unlawful decision.

Ratified the election of President Chamisa, by the highest decision making organ outside parliament as well as ratifying the decisions made by him as the leader of the party.

I must state in this regard that the processes by which President Chamisa was elected leader of the party were not chaired by him but by the National Chairman, Komichi.

President Chamisa was validly elected by the highest decision making organ outside congress and the finding to the contrary in the judgment of the High Court was queried by the Supreme Court and necessarily vacated.

Ratified the process by which Congress was convened. This was done for good measure. It is important to point out that Congress was not convened by President Chamisa.

Dispensed with the need for an Extra-Ordinary Congress having noted that its demands and more, had been satisfied by the Gweru Congress. In addition, its demands had been satisfied by time, the quintennial congress having already become due.

The point must be made that voluntary associations are subject to the rule of the majority. The majority has the power to even condone a breach of the constitution or to ratify any action taken outside the law.

It does not matter when this power is exercised by the majority so long as such majority is gathered at a properly convened congress.

What is key is that in this case, the power was exercised by unanimous assent. President Chamisa was elected and the legitimacy question properly buried.

All the decisions set out in paragraphs above were lawfully made and have not been challenged before any court of law.