By Mari Matutu | I was grateful that at least Bhasikiti has come open and voluntarily left our party. When I first pointed out that he is a bad basket just as Komichi was a bad cup, some doubted me. I am vindicated.

Some statements cannot be left without response. If they are to be left like that the enemy will take ground and some of us will support the enemy’s narrative without knowing it.

Is MDC A and MDC T the same? 

From Baskiti’s view these two are the same and they are both under Douglas Mwonzora. He even say Mwonzora is leader of both parties. Where he take his basis of argument I do not know. I can only speculate that his Zanu DNA control his reasoning.

There are few angles on can look at this to prove that they are not one and the same.

A) SUPREME COURT RULING.

a) I will first refer to the main basis relied upon by Mwonzora camp and possibly the regime.

Every person who follow events leading to SC must realise that it all started at 15 February 2018. Take it your way. Those that want to say Chamisa grabbed power at funeral and me who say Chamisa and National Council stood by 4^th Congress resolution speak the same item. There were two groups on that day. One led by Nelson Chamisa and one led by Thokozani Khupe.

Call it your way. The Khupe Camp held a congress of MDC T in March 2018 and went into election 2018 under the name MDC T. This party fielded candidates as MDC T. The other Camp led by Nelson Chamisa was guided by 2014 resolution of MDC on big tent. This resolution had ordered the leadership to join hands with other political entities and enter election as one big tent.

The Chamisa led camp entered election as MDC A.

The question that then arise is how then are these two the same? If MDC T as led by Khupe was the same as MDC A , how then will this group go against a congress resolution of Big tent and contest election against MDC A?

If Khupe had assumed the leadership of the party she was elected Deputy president how could she only remember her election as Deputy president and forget the congress directive and go against it? She had freedom of association not to associate with the big tent resolution of 2014 and others did.

Now the results of elections cannot be of same party. It is impossible. Khupe went campaigning against Alliance and it remains in everyone’s memories.

• Soon after 2018 general elections, a member of MDC by the name Mashavira, approached the courts.

His claims are fully recorded in court papers. However few things become obvious from his action. Mashavira had seen that Khupe was leading a party by the name MDC T. This party had contested election as MDC T. Now is it not clear from onset that Mashavira could see that these two are not the same thing? Is it not obvious that despite having the elected deputy president and party name MDC T belonging to Khupe still Mashavira identified the correct party MDC led by Dr Tsvangirai? As for National Council declaration that they have put Chamisa to lead the party could have been construed as forming a new party. Nothing could have stopped adults to declare who so ever they want as their leader. Its not a crime that a National Council decide to go with Nelson Chamisa and leave Khupe with name MDC T. Instead Mashavira as a member of MDC knew his party and managed to identify it from an imposter. How then can one conflate the two again.

• In June 2018 MDC held its 5^th Congress as per 6.2.2 of its constitution. Delegates were drawn from all over the country. On that Congress Nelson Chamisa was elected MDC president. These were adults with freedom of association. They chose whom they want to lead them. They even resolved that they do not want to be associated with Khupe and her camp.

Now is it not clear that these two are not the same. Freedom of association is equally the same to freedom to disassociate. Look at it in that Chsmisa camp held a congress not under the name MDC T but MDC. They disassociated themselves  Khupe and MDC T. Who can force them to remain under Khupe when they do not want to be. How can these two be the same?

• In SC there was a debate on this. The Mashavira Lawyers argued that Chamisa was elected MDC president by members of MDC A so he is not the president of MDC the party left by Dr Tsvangirai. Then came Prof Madhuku he said there were two camps of MDC T. How he came to conclude that is not known when Chamisa never held a congress under the name MDC T at any given time. Never the less many people under estimate what happened in SC. This is a record which every person who boast of SC should be silenced with. The SC took a judiciary notice of two inescapable facts as I will quote below. Take note that a judiciary notice is an authentic acceptance by the court of a fact that no one else can bring it again for arguments.

The evidence on record, as elaborated by submissions from counsel, suggests  that the third respondent may have moved on to other political pastures. However, there is no clear evidence to the effect that she has unequivocally relinquished her political rights and  interests  in  the  Party. On  the  other  hand,  it  seems  relatively  clear  that  the  second appellant has become “the chosen leader” of the Party. The Court cannot but take judicial notice of the following political realities. Firstly, as appears from the voting results of the last general election held in July 2018, the second appellant was the only viable opposition contender for the presidency. He actually garnered 44.39% of the total valid votes cast in the presidential election, as compared with the winning candidate, the incumbent President of the country, who obtained 50.67% of the votes cast. In contrast, the next highest ranking candidate, being the third respondent, only secured a paltry 0.94% of the valid votes cast. 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.

It should be clear that SC made them two different parties. The party that

Chamisa represented in 2018 is MDC A and Khupe ‘s party was MDC T. The SC did not identify them as one. The SC says it clear that the party that elected Chamisa in Gweru was the party before the court and not Khupe’s MDC T. The judge state it as a fact that Chamisa’s unanimous election as MDC party before the court was inescapable. How then does Bhasikiti bring anything to change that?.

• In short there is all evidence that SC and all events leading to judgement separate MDC T and MDC A. They are not the same.

The reasoning behind this is interpretation people want to put to what they call SC orders. They take where it says   

It is accordingly ordered as follows:

1.The appeal be and is hereby dismissed with no order as to costs.

2.The  judgment  of  the  court a  quo be  and  is  hereby  confirmed,  save  for  the deletion of paragraphs 4 and 5 of the operative order.

3.The  third  respondent,  in  her  capacity  as  the  Acting  President  of  the  first appellant,  be  and  is  hereby  ordered  to  convene  an  Extra-Ordinary Congress, within a period of three months from the date of this order, in order to elect a new president .

4.In the event that the third respondent fails or is unable to comply with paragraph 3 above, the third appellant, in his capacity as the National Chairperson of the first  appellant,  be  and  is  hereby  ordered  to  convene  the  aforesaid  Extra-Ordinary Congress, within a period of Four months from the date of this order. 

It looks very tempting to just conclude and say SC gave Khupe the party. It has also become a

lame excuse to those backing Chamisa to call this judgement by name corona judgement or MDC T a judiciary reconstructed party. It benefit more to the Mwonzora camp if someone say its a judiciary constructed party or to call the judgement a corona judgement. I have written this before but will repeat again. 

The SC56/2020 was the fairest judgement that has been misinterpreted and everyone miss the point because of emotions. After calming down everyone must see it favours Chamisa 100%. The enemy discovered the weakness of MDC A followers. They do not read things. They rely on someone’s brief comment.

Here is what the judge says before the order.

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.

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.

I have put key words in bold ink for one to easily the point. This is where the whole issue must end. All MDC A members must rejoice and educate each other on this.

a) When the court is referring to the matter it talks of what Mashavira brought to court as his prayers. Define them in what ever manner. Even the preferred version that Chamisa grabbed power bla bla. The point  is the SC say all that was moot and academic. We cannot change the past. Chamisa is now the elected president of MDC. Its now water under the bridge.

The thing that remains standing is the appeal. I think this is where most get lost. Some become angry against the Judge and say “how can he order the holding of an EOC after declaring the matter moot and academic”. Please calm down. You can only realise this after taking a short exercise. First Chamisa was elected at a congress convened for article 6.2.2 congress. This is a five year congress where everyone get fresh mandate. This process had nothing to do with what was in the record of HC. The event happened after the HC judgement. Now in HC judgement was an order that reads as follows  

4.The  1^st 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 appealed against by the appellant who had this to say in their grounds of appeal

“10.The ordinary congress for the first appellant having become due, the court a quo erred in finagling upon that party an extra ordinary congress and so erred in creating a totally untenable position which is at variance with first appellant’s constitution and is totally unworkable either in fact and or in law.”

I have deliberately chosen these two because they are the basis of the whole thing confusing people. 

• What everyone must realise is a HC judgement is an authoritative law source. Anyone can use it to interpret a point or settle a dispute. Now as at 29 March 2020, that order from HC was a standing authoritative source of law. If the matter had been resolved by holding of a 5 year event of congress 6.2.2 of MDC constitution, what was going to

happen to that HC order. How were people going to interpret it. If a dispute was to arise with the party what was the correct way of interpreting that order.

• Now that the appellants raised a concern. Not against Mashavira or Khupe bit the judge . Their 10^th ground of appeal has a direct finger pointing a blame at the HC judge. Are the appellants correct is saying she erred? Shall the SC leave this authoritative source of law standing as it is? This is exactly were the court stood. This was no longer about the matter as brought by Mashavira,(Notwithstanding the political mootness of the matter), it was now about a determination as to what was appealed. In this case it is about order 4. Was the HC right or wrong on that order in the interest of justice.
• A better look is to go down into the disposition. The judge says clearly

“It would also involve modifying the judgment a quo to conform with that purpose”

Once you have noted that the judge said the matter is moot, all he want is to give an authoritative  determination on appeal this statement above must not skip you. If the appellants had not brought the appeal was the HC judgement going to be modified? The answer is no? That judgement was going to stand as law. Could SC just modify a judgement without any reason? The answer is no. This means the SC accept in part that the HC judgement on order 4 was faulty. 

• What is it that was wrong of the order for it to stand as an authoritative source of law in running the affairs of MDC? 
  • If you check the order had said MDC must hold an EOC after lapse of one month from date of order. When is after lapse of one month?
  • The HC by just directing MDC in general to hold an EOC left no specific person or organ of the party being directed. There are four ways of calling for an Extra Ordinary Congress in MDC. Of the four ways which one should have been applied to convene this particular one. If it fails to happen who would be approached for non compliance?
  • The MDC constitution requires that an EOC be held with a year from date of death of the former president. When the judgement of HC was given on 8 May 2019, it was almost 3 months past the constitutional time limit. Without extending the constitutional time frame how could the judgement stand valid to MDC. 
  • The next thing is article 9.21.1 of MDC say upon death of president the deputy assumes the role of acting president pending the holding of an extra ordinary congress to elect a new president. The point is the deputy president is not appointed acting president by anyone but just assumes the role of president. Should the deputy president be absent or form her own party just as Khupe did then in terms of article 9.3 says the National Chair will then take the role of president. This role held pending holding of an EOC and the EOC must be held within a year. Should the Court extend the time limit, as it did few things come in. The extension always take from were the date of death of president to were 1 year ends. Anything after that is extension. Second the court could extend a time frame of holding an EOC to elect a replacement of Dr Tsvangirai after the date of his death but cannot extend the 5 year time frame of Dr Tsvangirai’s term. Whether he was alive or dead his term was going to be dissolved by congress.
  • The court then chose from the four ways of holding an EOC in constitution and direct that the roles of president which allow the office bearer to convene an EOC be applied. This was not to make anyone president.
  • It is at this juncture on has to take the HC judgement and put it to your left and take SC judgement put it on your right. You can see that all what SC did was to confirm the first 3 HC orders as they are. Then remove entirely the order 5. After that amend order so that it correct all the anomalies that were in conflict with constitution or totally unworkable in fact and at law as the appellants has prayed.
  • The Court did not direct that go then and reinvent the matter. No. The court modified the HC judgement so that it reflect a true and correct authoritative source law. Just like Acts of parliament have their own wording, the courts also have it own wording.
  • When the court says “It is accordingly ordered as follows” one must not take each word loose. The word “accordingly” must guide us that what ever is following relates to previous circumstance? Is this statement directed to Khupe or Komichi? If one can positively identify where this particular directive is going you would have won the whole thing. 
  • This ordered to change the wording and modify the HC order. The order is directed at the HC judge that her order should have looked like this.
• Now if Khupe who has lost capacity of being Deputy president by expiry of both her term and

Tsvangirai’s term convene an MDC T congress with delegates that were not the same as the ones Chamisa was leading and go on to elect Douglas Mwonzora as a replacement of Tsvangirai on a long time gone mandate, how does that affect MDC A? Even if he was elected by expired mandate of 2014 structures, how does he become present mandate president.

• Mr Bhasikiti the Zimbabwe constitution is very clear on this matter. People are elected into Parliament in terms of electoral laws of the land. The electoral laws make MDC T and MDC A two distinct parties. You cannot mix the two.

Kana Mbeva yodo kuramba mwena wayo inopinda nekumuswe. Unonzwa yoti handicha kwanimo

As for rebranding Mr Bhasikiti in MDC the congress is the supreme body. We do not do things Zanu way. In our 4^th congress we had a big tent resolution that gave birth to MDC A. Its no longer a dispute that MDC A is a new brand. Those that denied to be part of congress resolution of big tent cannot be the benefiters of it. On what grounds.

If not for that fact then Chamisa formed his own party on 15 February 2018. What will be the basis of saying they are the same and one can take seats fought and won by MDC A?