By Peter Muponda
I believe our recalled MPs of MDC A have managed to file the papers to ask the judge to excuse himself from the case. This is a very positive move.
However there is still one element that is being overlooked by those managing the case.
They miss that when ever Mwonzora write his letters he says he is MDC. All the recalls are saying members have ceased to belong to MDC and not MDC T. He further use a letter head with MDC T and Tsvangirai face yet he refer to MDC Alliance which he says MDC belongs. This cannot be left unchallenged and this is the easiest route to win all cases.
This can be done by acquiring an affidavit from Welshman Ncube stating the following.
1) In 1999 a party known as MDC was launched and in 2000 it held its congress and a constitution and leadership was born. MDC was a separate legal entity from its members
2) Morgan Tsvangirai was elected president of MDC and Welshman Ncube Secretary General of MDC. In the constitution president was the principal of party
3) He must state that the constitution required MDC to hold a congress every 5 yesrs and elect new leadership.
4) He must state that if a member of the party forms another party or contest against MDC he would have expelled himself from MDC.
5) He must state that MDC did split into two camps in 2005 through internal dispute and Tsvangirai went with another camp and he Welshman Ncube went with another camp.
6) That in 2008 harmonised election MDC camp led by Tsvangirai added a T in front of their MDC and then the arguement they had was that it was not a new party but a election distinction mark.
7) In 2013 he must state that his camp also used a campaign symbol of MDC green.
8) State that each formation was holding congresses in their respective camps.
9) He must state that in 2017 he was approached by Morgan Tsvangirai to join hands as an election pact and campaign as an Alliance with all progresive opposition parties and seven political formation came together.
10) He must state that through evidence of signed Alliance agreement Tsvangirai admitted he was president of MDC T and not president of MDC. By reference to article 5.10 of MDC constitution we introduced in 2000 he had automstically expelled himself from MDC. No procedures could be carried out by MDC but to accept. This proved a long time dispute that he always denied that Tsvangirai had formed another MDC with a surname. By his own admission and signature he stated he was president of MDC T. The agreement also stated that MDC T was independent of MDC save for matters stated in agreement.
11) He must state that Tsvangirai recognised Welshman Ncube as the legitimate president of MDC and its principal because by signing he believed all facts in the agreement that Ncube is the president of MDC and he is president of MDC T. It also means he recognised the congress that elected Welshman Ncube as president as a true MDC congress. If not for that he could have challenged that because the last time they were together Ncube was Secretary General and him as president. His signature to the effect that he agree that Welsman Ncube is president of MDC which is separate and independent of MDC T is enough evidencs that Tsvangirai had since ceased to belong to MDC.
12) He must state that he only got the information through court records that there was a member of MDC by the name Elias Mashavira who sued MDC and demanded that Khupe should have succeeded Tsvangirai as MDC president. Upon reading the SC judgement I discovered the following.
i) MDC is the first Applicant in the case
ii) Morgan Komichi lodged court papers on behalf of MDC.
iii) A copy of what the parties said was MDC constitution was filed.
iv) Douglas Mwonzora was cited as MDC Secretary General and Thokozani Khupe as deputy president.
Upon reading further the judgement, the court correctly ruled that Morgan Komichi was not correctly authorised to stand for MDC. As far as our first Congress as united MDC the Chair was Lovemore Matongo. Morgan Komichi is product of MDC T as affirmed by Tsvangirai in his status as Principal of MDC T in alliance agreement.
The court also ruled that it would use the presented constitution only for purpose of that particular case. In that case I stand and say that document is not MDC constitution. May be it is MDC T constitution because it follow congress dates of MDC T after we split on its amendments.
13) He must thank the SC that in its operation order it exonerated MDC from holding an Extra Ordinary Congress by deleting operation order 4 of the High Court. This order gives me right to stand up and say Mwonzora must stop using MDC name as if SC ordered MDC anything and he must stop representing himself as MDC Secretary General because that is a crime.
14) Welshman must state that he went into 2018 election as a principal of MDC and the other principals agreed to use the agreement provisions in Alliance agreement to replace Morgan Tsvangirai as MDC A presidential candidate with Nelson Chamisa. He must state that the criteria used was based on an individual with capacity to win election against incumbent. He must state that Chamisa’s selection was not because of his office in MDC T but as individual.
He must state that as presidential candidate he would Chair the Coalition Alliance Forum and his facial image would become the MDC A logo and this should still stand in all our campaigns.
15) He should state that while matters in MDC T remain independent of MDC but he must state that Nelson Chamisa attended CPF meatings also as MDC T principal. Should Chamisa be found to be a wrong principal and all his contributions and actions as MDC T principal be nullified then there is one fact that stand. The fact is after Tsvangirai death MDC T never attended CPF meetings. MDC T never appointed any members in Alliance Nominations Committee and MDC T never submitted candidate names to ANC. There is no other way a political party could perform the items in the agreement without being represented by a principal. In short MDC T has no MPs under MDC A because that decision to nominate them as MDC T was nullified by SC.
Instead if we stand by SC ruling which confirmed that Thokozani Khupe was the legitimate principal of MDC T I say MDC T breached the alliance agreement and is acting unfaithful to the agreement. MDC T and its principal fielded candidates against the Alliance which is in breach of agreement they want to claim.
16) He must then state that in October 2018 under the belief that Nelson Chamisa is the legitimate president of MDC T and as well as having full knowledge that Nelson Chamisa himself as individual was the National Youth Chair in 2005 when we split and by then he was member of National Standing committee. He must state that by any right he was part of MDC conflict. Either way as member of Standing committee at split his personal voice on the matter was valid we agreed to unite as one MDC and intergrate.
17) He must correct the version that there was MDC – Ncube because there was non. He must also state it is not MDC that was disolved in 2018 but the structure of MDC as led by Welshman Ncube. There is big difference in disolving a structure and disolving a party. MDC remains as it is and separate from its members who can go where ever they want.
18) He must state that the intergration led to compromises on positions in preparation to a congress that was to elect one structure involving all formations who had interest in MDC as it was in 2000.
He must admit that the were High case that had ordered MDC to hold a congress and it was appealed. The main reason was that the fight to succeed Tsvangirai were in MDC T not MDC and if Nelson Chamisa was not legit president of MDC T but it does not stop him from being elected president of MDC. If people following Chamisa decide to Follow him to MDC there was nothing stopping them to do so.
The appeal was done during the time Welshman was already part of new MDC out look.
19) He must state that the congress 2019 was convened with MDC constitution and not MDC T constitution. Mwonzora as Secretary General of MDC not MDC T by agreement of October 2018, did write the notice of congress to all structures of the joining formations. The lower structures reintergrated at branch level. If you read MDC constitution the lower structures are the first to hold assemblies to form new leadership.
The congress was held and Nelson Chamisa was elected president of MDC.
20) He must as well correct that Chamisa was not elected president of MDC A. He was elected president of MDC but remains MDC A presidential candidate. Should someone say he or she is MDC A member it is correct in as far as all electoral laws are concerned.
He must state that s120(2) and s124(2) direct it as a must that elections must be held in accordance with electoral laws.
21) He must state that s4 of electoral act defines a political party as “any political organisation” hence MDC A is by electoral law a political party and only if you cease to the electoral law party is when the constitutional provision 129(1)(k) can only kick in.
22) He must state that nominations of candidates is done on prescribed forms and candidates are nominated as voters not as party members. The electoral law assumes that all registered have no political party but just citizens exercising their s67(3)(b) right to stand for elections where upon being nominated they choose a party and party symbol of their choice on a prescribed form. The membership does not remain secret to the voter. It is stated by a solemized declaration.
Upon winning election a declaration is made either by nomination court if you are the only succesful nominee or election officer where you get more votes. Every member of parliament goes to parliament by official declaration which must state the following details
i) Name of Member
ii) Party name if any
iii) Party Symbol
iv) Constituency one represents.
This is the official declaration by electoral law which the constitution demands.
23) s2 of Electoral law state the application of act as only for elections. This means the provisions of the act and electoral law should not be used for settling internal political disputes.
24) Welshman Ncube must state that
Should court want to refer to the Alliance agreement which he was a principal it would see that it is the principals of MDC A in a CPF that would appoint an Alliance Nomination Committee that will administer the process of nomination and become MDC A office bearers as required by act. He must state that him as principal who attended all CPF did not see Thokozani Khupe in those meetings. Hence MDC T could not have appointed members of ANC.
This provision complies with the definition of what the act regard as political party is because the office bearers are appointed by single unit MDC A representing one party. By that there is no way MDC T could have nominated by electoral laws as a party in another party.
25) He must also refer to the clause in agreement that says the Alliance agreement shall be governed by law of Zimbabwe. This is admission that the agreement has formed a political organisation with an identity therefor its a political party.
26) He must state that as a principal in MDC A and having made agreements with Chamisa in all decisions that were nullified hereby stand as the only person who can iron out disputes in the recalls and state that in summary
1) Mwonzora is not MDC secretary General both before and after Alliance agreement as he state in his letters of recall.
2) Tsvangirai left MDC T as his party and not MDC becsuse I was president of it then
3)After death of Tsvangirai the legitimate MDC T principal never attended any meeting and by SC ruling MDC T never fielded candidates through MDC A alliance nomination committee.
4) Instead Khupe as principal of MDC T breached the agreement and fielded candidstes.
5) After SC ruling those that contested as MDC A are free birds that have freedom of association. The choose to associate with MDC A or MDC T. However MDC T has no right to recall a member who stand for MDC A because he has ceased to belong to MDC T when in actual fact MDC T itself never contested as MDC A. That is violation of freedom of association. Let MDC A say we do not want them. It will be gross violation of freedom of associatioon and freedom of political party choice.
6) It must be noted what signed Alliance agreement were political parties who exercised their freedoms and not members of the respective parties. A political party remain separate from its members. When MDC T decided not to join MDC A in fielding candidates it did not take away the rights of these MPs to choose to belong to MDC A. As is shown by agreement that Chamisa was chosen as individual to be candidate and when SC ruled that MDC T did not send Chamisa to nominate automatically all candidates acted as individuals.
7) MDC T has no claim in a thing it never fulfilled
Hope my VP as a lawyer will correct my errors but I believe by an affidavit in recalling case you can tear apart these sellouts for good