This I write to you Dr Alex Magaisa, Adv Thabani Mpofu, Adv Mahere and Adv David Hofisi. I write to you not as political activists but as Lawyers of Higher levels concerning how Lovemore Madhuku has hushed his client Thokozani Khupe on a looming bomb attack from the to-be victim, Nelson Chamisa.
By Mari Matutu |
My Greetings.
I want you to go to page 40 of the Supreme Court Judgement, SC56/2020 first paragraph and last sentence. It reads
In short, notwithstanding the political mootness of this matter, it is imperative that there should be an authoritative determination of this appeal in the interests of justice.
I feel this is where most people have missed the judge. I beg you to look at my view and if I am wrong there is no harm but I feel there is going to be injustice to Nelson Chamisa and the Judges that passed this verdict.
- I feel the judge separated two things. The Matter– which are all the payers of Elias Mashavira as repeated in judgement on last paragraph of page 2 to first paragraph page 3 of judgement.
- The appeal– which I feel has two parts, what the judge of High Court ruled as repeated by Justice Patel in page 1 to 2 then what the appellant said in their grounds of appeal as repeated in page 8 of judgement.
- As we all know that the High Court judgement on the matter was held on 8 May 2019 and SC first sat for the appeal on 17 October 2019, MDC held a congress on 24 June.
2019. This means this issue was
- not in the record of High Court
- not an event held in compliance with judgement but held compliance to MDC constitution article 6.2.2. This article of MDC constitution puts a straight jacket
that no one can extend the period of holding this special 5 year
Congress.(Article 6.2.3(g)
- However the congress did affect what Mashavira had prayed for in full. That is to say
- Mashavira was asking for a Congress elected president of MDC now the congress was held and a Congress elected president was there.
- Mashavira was praying for a replacement of Dr Tsvangirai as president of MDC- the term of Dr Tsvangirai had since expired and dissolved by 6.2.2
Congress iii) Mashavira was saying Khupe should have assumed the post of Acting president in order for her to convene an EOC for MDC within the stipulated time frame of 1 year. She did not assume the post neither did she convene the EOC by 14 March 2019. In that case she was in breach of article 9.21.1 of MDC constitution. Now her post as Deputy president was dissolved by 6.2.2 congress.
- The above are the facts of the MATTER. However by holding the 6.2.2 congress the concerns fall away. In that case the Judges took judiciary notice of the unanimous election of Nelson Chamisa at a congress held in Gweru. On page 35 of judgement the judge says
Secondly, and equally significantly, he was unanimously elected as the President of the Party, i.e. the one that is presently before this Court, at its Congress convened in June 2019. These are the inescapable facts that loom large on the country’s political landscape.
Take note that what made the MATTER politically moot is not just the holding of a 6.2.2
Congress. There are other provisions that made the whole matter(what Mashavira claims) irrelevant and inapplicable. I will try to list some
- In terms of MDC constitution article 6.2.3(g) no one can change the time frame of 6.2.2 congress. Which means the SC itself was tied that it could not do anything to this 6.2.2 congress . Its time frame cannot be extended any further.
- The term of Dr Tsvangirai which was to be served by who ever to replace him is terminated by lapse of 5 years. If he was alive by 24 July 2019 his presidency was going to end on that congress, hence the whole notion of replacing Dr Tsvangirai falls away beyond holding of congress.
- All other office bearers including Khupe and Komichi were terminated at the lapse of 5 years and holding of congress. This had effect to the prayer by Mashavira that Khupe must convene an EOC. Once her term has expired she loses capacity of being deputy president or Acting president.
- In terms of article 9.21.2 if the Chairperson resigns the deputy Chair act as Chair until the next Congress. In that case even Morgan Komichi could not act as Chair and assume the role of Acting president past congress because that is the condition.
- The student unions are part of MDC Congress delegates. They hold their congresses independent of MDC. One could not extend the mandate of 2014 student structures just to come and elect a replacement of Dr Tsvangirai when the current leadership have already chosen a new leader. vi) All MDC provincial Structures hold their 5 year Assemblies in terms of article 6.9.1.3 at least two months prior to the date of Congress. By the time judgement of High Court was given all provinces and all Districts had new executive and new delegates for next congress. These organs elect their executive independent of who ever is president of the party and the 5 year mandate of such executive is not determined by who the current president is.
In that case Mashavira or the SC could not change that fact.
vii) In terms of article 8.1 a Youth Assembly is build on separate membership which has age limits of 16 to 35. By the time the 6.2.2 congress was held there were members of old executive whose age had passed 35 years and could not be youth anymore. The court could not extend the mandate of those youths just on the basis of their age limits.
- These are the issues that relate to the matter which are spelt in MDC constitution and the SC could not change them.
- This is why the court insist that the MATTER was moot and remain moot no matter which angle one wants to take.
- What I feel many of us then miss and I feel you as my learned lawyers will assist is the fact that the judges of appeal are seating on an appeal whose judgement is an authoritative ruling. It was not complied with and the appellants appealed against the entire judgement. They raised issues not only on the matter but on the pronouncements of the judge. This judgement was written well before MDC congress 2019 was held. The issue of mootness was not part of record when judge gave judgement.
- Something had to happen to that standing authoritative judgement. You cannot just say aah the matter is moot then what is the response to the points raised and fully debated before the judge. Something had to be done to the appeal.
- This is where the judge says
notwithstanding the political mootness of this matter, it is imperative that there should be an authoritative determination of this appeal in the interests of justice.
The judge was very clear that he is giving an authoritative determination just on the appeal and not on the matter because the matter is beyond redemption. You cannot do anything. In his own words the interest is not to give individuals who feel aggrieved a relief but the interest is for justice delivery. Making a law. The words “this matter” particularise the matter and its interests, where as the appeal relates to interests of any other people.
- It then shows that the disposition written by the judge is just for the appeal on an authoritative basis only and not to give anyone a relief. Nobody should then bring issues relating to the matter back. They cannot be implemented.
- I now go to give my view on the comments on disposition
.Disposition
The essence and objective of the corrective measures to be implemented by the Party is to restore the status quo ante that prevailed before the irregular and unlawful appointments to the Party presidency took place. This would necessitate having to extend the time limit prescribed in the Party constitution apropos the convening of an Extra-Ordinary Congress to elect a new President following the demise of Dr Tsvangirai. It would also involve modifying the judgment a quo to conform with that purpose.
This paragraph must be read with full understanding that the judge is dealing with the APPEAL and not the matter.(what is in HC record and grounds of appeal only) i) When the judge say
“The essence and objective of the corrective measures to be implemented by the Party The essence and objective of the corrective measures to be implemented by the Party” He does not refer to the matter but to the authoritative decisions to be taken on the appeal. This is so because he already said his intention is for justice delivery. Nobody must now bring back the issues to do with the present matter but future matters.
- In doing so he say you need to restore the status quo before the irregular and unlawful appointments to the presidency. This is where most take the notion that SC said go back to 2014. This is not correct. Key words are “Appointments” and “Presidency”. It shows the judge is using 15 July 2016 as the point of reference. Dr Tsvangirai appointed Mr Nelson Chamisa and Mr Mudzuri to posts of Vice presidents and in terms of article 9.2 this post is a presidium post. Yet according to what Mashavira says these posts are for elected members. Only elected members may Act as president in terms of 9.21.1. Now the judge had to go back to that date and look for office bearers that were in the office of president. This exercise was not to look for the Secretary General or Treasurer or Organising Secretary of that time but to look for possible candidates who by that date were in the presidium and are elected office bearers.
- This is the reason why we see that the judge explained first that the duty to convene an EOC is in the office of president. Anyone seating as Acting president can convene an EOC.
- Now the court discovered that by article 9.21.1 the deputy president assumes, it does not say she is appointed but , she assumes the post by power of constitution.
By that it means she has the power to convene an EOC as the president.
- In the absence of president and deputy president as at 15 July 2016 the National
Chair was the office bearer who assumes office of president in terms of article 9.3. This was the status quo that prevailed at the time of the appointments in relation to presidency. The status quo is not for names of people but office bearers seating in presidium as at that date.
- Since it was raised that an EOC was suppose to be convened in its stipulated time and it is a matter on the record of appeal the court had to have a determination. The issue of time limit of holding an EOC has two implications.
- The EOC must be held within a period of one year from date of death of seating president
- The deputy president Act pending the extra ordinary congress which must be held within a year.
- This EOC time limit is a constitutional time frame other than time frame of 6.2.2 congress and this can be extended. By extending this time limit you also extend the time limit of acting president.
- However the court or anybody cannot extend the term of office of former president. This is so because of reason raised on why the matter was declared moot. However for authoritative source, a determination on such a circumstance should it repeat, had to be given. This is where the court put a provision to extend the time frame of holding an EOC to replace Dr Tsvangirai . People must not miss the reference always given by the judge on the EOC. He says to replace Dr Tsvangirai, which means you cannot be replaced beyond what Tsvangirai could possibly do. Dr Tsvangirai was bound to be dissolved by 6.2.2 congress which will be composed of totally new structures from provinces, districts, youths and woman assemblies. These new structures are not bound by old term of Dr Tsvangirai or any other office bearer. Their existence does depend on who is president or Chair or SG. They exist because article 2.1 of MDC
The MDC shall be a body corporate with perpetual succession, capable of Suing and being sued and acquiring and disposing of property in its own name.
MDC has a perpetual succession. Nobody is permanent on a position. So in short no one elected to replace Dr Tsvangirai can last longer than Dr Tsvangirai’s term. If by any chance that the Courts find that Mr Douglas Nwonzora was correctly elected as a replacement of Dr Tsvangirai by 2014 structures, let it be clear that such replacement was dissolved by article 6.2.2 of congress held in Gweru by newly elected structures of 2019. He cannot replace Tsvangirai beyond his term. ix) The court further state that it is amending the judgement a quo in order to conform with this purpose. It must be noted that the SC did not in any way bring a new judgement, but it amended the HC judgement to give authoritative determination on what the HC judge had said.
- Take this as “correction” of the HC judgement for the purpose of giving an authoritative determination.
- One then has to go to the original HC order and see what was then amended and reasons thereby. Once you miss that the SC judge amended a judgment of HC but did as a determination of only the appeal and not the matter you are bound to create the impression that SC said go and hold an EOC after it had declared the matter moot, thereby giving in to vultures. Once you also miss that the purpose of amending is to give a corrective measure on the appeal and not on the matter.
- By checking the list of 5 orders given by HC you can see that the SC confirmed three and deleted order 4 and 5 of HC. xiii) Now one will have go again and see the deleted orders and see what they were saying before being deleted thus
- 4. The 1st respondent be and is hereby ordered to hold an Extra-ordinary Congress after the lapse of at least one month after the date of this Order.
This order was debated in the appeal hearing. It was one of the bases of appeal. In MDC there are 4 provisions of holding an EOC of MDC of the 4 which one can one authoritatively assign to this order. Who should carry the responsibility of implementing it of the 4 provisions? This same order had said “after lapse of at least one month from the date of this order”. When is that “after lapse of at least one month?” . Lets admit the order was vague and could give a lot of interpretation. It could also not go beyond constitutional time limits of holding 6.2.2 congress. Agreeably it had to be amended for authoritative source. This is where the judge chose article 9.1.2.1 of constitution which direct one person acting as president to exercise such powers. Again the purpose was not to direct Khupe or Komichi to convene EOC but to amend the High Court order and give responsibility to a person.
- By giving 3 months to Khupe or 4 month to Khupe it is not the SC judgement date that is being referred to but HC judgement date, otherwise it will not be an amendment of HC judgement but a fresh judgement with its own judgement date. If that notion is taken this is where people say the judgement is dubious, but if you carry in mind that the judge already said he is amending HC judgement then be steady. The extension of 3 or 4 months are from date of HC judgement.
I know one would quickly want to ask why the SC extended the time when approached by Khupe . The answer is the courts are not politicians. They act on court record. Those that did it wanted to create a new matter other than what Mashavira brought in. By creating a new matter it depends on how each one react. That does not mean the matter before SC was not moot. That Mwonzora is using it for gain or zanu is using it is beyond court’s control. If MDC want to hold another EOC and elect a new president after 6.2.2 its their choice. The courts will extend unless one raises a point to object on the grounds that its no longer possible. Again its not for court.
The courts went a length to justify the route it took to amend HC order. This brought two split orders of alternative application. One is for a deputy president using article 9.21.1 and second is for Chair using article 9.3.
Take note that the judge says “ in her capacity as”/ “ in his capacity as”. The judge is not conferring a capacity to anyone. The capacity is conferred by constitution. To prove this, while the Court went to 15 July to establish the status quo of MDC presidium it never said Lovemore Moyo who had resigned from MDC must come and convene an EOC. The SC referred to the status of Komichi at the time of record and HC judgement, which was the Chairperson . The constitution article 9.21.2 confers that status with condition that it only last to the next congress. He cannot then act beyond what Moyo could have done. That will not be possible. Without that capacity one cannot convene an EOC for MDC. In that case the court was careful to state a condition that one has to have in order to convene an EOC. Without the required status you cannot. If the courts wanted to make them Acting president it would have been a declaration of that fact first. It never did so and could not have done so at all.
For amending order 4 of HC the SC came up with its order 3 and 4
One other that the public was trapped into is the issue of Chamisa grabbing power. Actually Mashavira himself say the event of 15 February 2018 was a non event. National Council could not confer Chamisa powers it did not have. This brings us back to the point that by 9.21.1 Khupe assumed role of president because that is what the constitution say. She never approached any competent court to say she is being obstructed to do her duty. Again she did not convene an EOC within a year. So when the court is giving a determination it actually putting blame to Khupe and Komichi for failing to do what they should have done in a year. When the Court is extending it is extending period of holding EIC it extend on the time the 1
years lapsed. The Court assumed Khupe had assumed her role. So how could Chamisa had grabbed power. In stead Khupe held a Congress of MDC T which is another party. She repeats again the same issue
ix) We go on number 5 of HC orders. It reads
5.The respondents are ordered to pay the applicant’s costs of suit, jointly and severally, the one paying the others to be absolved
In amending HC order 5 the SC deleted the order completely and says these words
As regards costs, there can be no doubt that this matter is of great public importance. Moreover, it was necessary that the issues raised herein be fully ventilated and satisfactorily resolved in the interests of all the parties affected. In these circumstances, it seems to me that the Court’s discretion on costs should be exercised so as to depart from the general rule that costs should follow the cause. I accordingly deem it just and proper that t here should be no order as to costs in respect of this appeal as well as the proceedings a quo
I cannot add more than just to say ultimately it is an amendment of HC order for the purpose of authoritative source. Correcting order 4 of HC is the major amendment that has brought us this far.
Courts decisions are source laws and if amended it is not a new source law but same one. The question is could the Courts have extended 6.2.2 congress time frame? No. Then yafa yakaloader. The amendment of order came too late. It now serve for authoritative purpose but not on the matter.
I now come to the tricky issue that Mwonzora is attracted on.
He is saying he won an EOC of MDC T presidency. This he is drawing a thread to all those that know Tsvangirai using name MDC T. This is the reason why he wanted to hide behind Thokozani Khupe. The after thought was strengthened when they first attempted to claim MDC
A based on ALLIANCE agreement in October there about. Then his belief was that the leader of MDC T was automatic successor of the MDC A presidency. After debate they later found out the agreement actually favoured Chamisa for he was selected to be presidential candidate as an individual. In that case he becomes part of MDC A logo. Again ZEC had Gazetted PR MPs on the name of MDC T. Should bi elections go as was scheduled on 5 Dec then Chamisa would be the legit brand for MDC A by ALLIANCE agreement. Khupe could not now change her party name in the Gazette.
This is where they hatched a plan to cancel the Bi election dates. Extend the date of EOC. Hear the matter of recalled MPs. Swear in Khupe so long then everything will fall in.
First The courts will rule that Khupe is illegally in parliament. ZEC erred. All MPs that were recalled for not being MDCA are brought back. However MDC A is a pact but by electoral law is a party.
Because Mwonzora is now the principal of MDC T he can claim right of MDC A. Why MDC T?
- Because Tsvangirai Alliance Agreement in 2017 as president of MDC T.
- Because Mwonzora want to claim the role principal of MDC T in order to claim right over MDC A.
- Because all members of MDC who went to congress Gweru refused to be called MDC T. Not because they are not the party left by Tsvangirai but because MDC T had become a distinct political party as led by Khupe. This is why Chamisa says he is MDC A and refuses to be called MDC T which had become a separate party
I have seen a lot of people saying Chamisa has formed a new party called MDC A yet they do not want to say Tsvangirai formed a new party when he said he was MDC T.
The whole trick is in two sources.
i) Article 9.1.3 of MDC constitution reads
9.1.3
The President shall in general act as spokesperson of the Party on major policy issues and is the custodian of the Party name, logo and symbol.
The President shall be the principal public representative of the Party, provided that nothing in this section shall be construed as empowering the President to act or do anything contrary to the Party’s principles of open, transparent and democratic decision making.
After unanimously winning as the MDC president at a congress in Gweru Chamisa who was also the legitimate brand of the movement, had all powers to exercise his discretion and powers in 9.1.3 in matters relating to elections and electoral law and refer the party he leads as MDC A. This does not amount to forming a new party but a strategy of branding as he is the custodian of the symbol and name of the party. Just as then during Dr Tsvangirai who used MDC T. The trade name MDC T was used again by Dr Tsvangirai not as a different party but a trade name. He signed an alliance agreement on behalf of MDC in terms of article 3.7 of constitution. Which reads
3.7The MDC shall form alliances with political organisations, or united or popular fronts and may join national or international organisations which share the same social democratic values with it*
So yes MDC is a perpetual succession entity. What ever interests signed by Dr Tsvangirai as a president of MDC exercising powers in 9.1.3 belong to MDC and not MDC Tsvangirai or any other version of MDC.
The trick brought by Mwonzora of holding an EOC of MDC T and side-lining members regarded as MDC A is breach of order.
SC was about party known as MDC with a constitution in court.
Mashavira stated that he was a member of MDC and not MDC T. The Court has evidence that Khupe formed her own party called MDC T and if she convenes an EOC excluding MDC A on the basis that the 6.2.2 congress elected president prefers to exercise his 9.1.3 power and brand MDC as MDC A does not constitute an offence at all.
The second Source is the SC itself. Several parts of it , it mentioned the party before Court as the same one that got 88 seats in parliament and Chamisa being number 2 and Khupe 3 in presidential elections. We all know Khupe was MDC T and Chamisa was MDC A and non of them contested under MDC which is the name in Court. So by SC MDC= MDC A and not MDC T.
Any congress held under name MDC T is not complying with what the SC used to identify and describe the actual MDC that was before Court. MDC T was one of the evidence presented as ground to show that Khupe has moved on. MDC cannot be dragged on to where Khupe has moved on to.
That is why I pray before you to look at this and advise President Chamisa. My president I personally elected in Gweru congress of 2019 to stand up and defend our mandate.
Mwonzora is up to grabbing the name MDC Alliance using the title of principal of MDC T or block us from using MDC A. We know if you do not stand up now and put it bare the regime will manipulate the system.
If I am wrong do advise me.