By David Hofisi| The High Court sitting at Harare dealt a blow to Nelson Chamisa’s leadership of the MDC on 8 May 2019.
In the case of Elias Mashavira vs. Movement for Democratic Change (MDC) and Five Others, Justice Edith Mushore ruled that Chamisa’s ascension to the Deputy President, Acting President and substantive President were contrary to the MDC Constitution.
Criticism of the judgment has been as swift as it has been acerbic. The MDC claimed the ruling is part of the“machinations and strategies…deployed by the Mnangagwa administration to destabilize and destroy the people’s project.” Alex Magaisa referred to it as “embarrassment to the legal and political system,” whilst MDC member and lawyer David Coltart called it a “desperate and pathetic move.”
This is at odds with other commentators, most prominently scholar Derek Matyszak, who pointed out Chamisa’s questionable rise to the party presidency ahead of the court’s findings. In assessing these opposing views, I am convinced that it is the populist-driven nature of the MDC which makes its supporters oblivious to the legal consequences of its constitutional misfeasance.
The decision by the High Court is based on the concept of constitutionalism: the limitation of power by a supreme law. Article 6.4.4.1 of the MDC Constitution states that all members of the National Standing Committee, including the Deputy President(s), are elected at Congress.
Both Nelson Chamisa and Elias Mudzuri were appointed by Tsvangirai in July 2016, with theblessing of the National Council, but without being elected at Congress.
In response, Morgan Komichi
argued that the National Council could (and did) condone this departure, but
failed to point out the constitutional provision allowing such departure and
condonation. For that reason, the appointments were found to be contrary to the MDC Constitution and
it was ruled that Dr.Thokozani Khupe should have acted as President pending an Extra-ordinary Congress.
The High Court also struck down the elevation of Nelson Chamisa to substantive President without the constitutionally mandated Extra-ordinary Congress as well as all assignments and appointments he made in his capacity as President/Acting President.
It is noteworthy that, at the time of the appointments of Messrs Chamisa and Mudzuri, Article 6.4.4.1 only provided for one Deputy President. This is affirmed by Article 9.2 which, to this day, refers to the duties of ‘the’ Deputy President. Justice Mushore opined that “it should be obvious that the mention of Deputy Presidents in the plural is a typographical error.” The real reason for the inflation of deputies is probably less benign.
As Matyszak explains, it was only after the Chamisa’s elevation was questioned that the MDC Constitution disappeared from the party website, later resurfacing with the letter ‘s’ added to two provisions referring to the Deputy President. This constitutional revisionism became the basis to justify Chamisa’s elevation after the fact.
The ruling of the Court is therefore based on the MDC’s failure to live up to its own constitutional dictates.
MorganKomichi contended that the constitution attached to the court application was not the correct version, but did not attach any other version.
The Court noted that he actually
quoted substantially from the attached version, thereby confirming that it is
the authoritative text of the MDC. Further evidence of this proposition is
evinced by the critiques of the judgment, none of which take issue with the
reference to constitutional provisions or how they were interpreted.
To the contrary, the critiques
have been singularly framed through a political rather than legal lens,
abandoning the tradition opposition space of the liberal left (calling for more
judicial activism) and attacking the judges from the conservative right
(demanding they stay out of political disputes).
Effect of the Ruling
This means Nelson Chamisa is not, at law, the legitimate President of the MDC
and neither is Elias Mudzuri a legitimate Deputy President. None of Chamisa’s
appointments and assignments are cognizable at law. An Extraordinary Congress
must be held, but it seems it is only Dr. Khupe who can be its legitimate
Acting President.
This is the confusing part of the
ruling, since Dr. Khupe will likely argue that her own party already held such
congress and elected her the substantive leader. The MDC is likely
to appeal the findings, which will suspend the operative part of the judgement.
They will also likely argue that their upcoming congress cures all the alleged
defects. It is not apparent, given that Chamisa’s elevation and actions have
been struck down, whether such congress will have that legal effect.
Politically, Chamisa will likely soldier on, but his ability to claim ownership
over the MDC party name and assets is now seriously in question and is
certainly vulnerable to formidable legal challenge.
Criticism Of The Ruling
a)Murimoga Case
Both Magaisa and the MDC take issue with the Court’s failure to abide by the findings in the case of Patson Murimoga and Another vs Morgan Richard Tsvangirai N.O. and 4 Others HH635/17.
In the Murimoga case, two members of the MDC challenged the appointment of Nelson Chamisa and Elias Mudzuri to the positions of Vice Presidents (later called Deputy Presidents).
JusticeHlekani Mwayera dismissed the case on a technicality, ruling that the applicants did not have the legal standing to institute thematter.
The Court did not rule on the actual matter of Chamisa and Mudzuri’s appointments.
However, in Mashavira, Justice
Mushore ruled that the applicant possessed
sufficient legal standing since, among other
reasons, Morgan Komichi acknowledged that he
was a party member who even campaigned for Nelson Chamisa in the presidential elections.
The MDC is arguing that
since the issue of legal standing was dispositive of the Murimoga matter,
the Mashavira case should have also been similarly dismissed. This is
something the Judge actually addressed;
It is elementary law that this court is not estopped from coming to its own determination in a matter involving different facts andcircumstances and different parties by a court of parallel jurisdiction.
In other words, it is a basic tenet of court hierarchy and judicial precedent
that
the High Court is not bound by its own rulings, butthose of a superior court.
The Judge could have gone even further and stated that similar facts and circumstances do not guarantee similarity in outcome (unless a superior court has so ruled). Thus the Murimoga reference was hopelessly ineffectual for NelsonChamisa’s cause.
Political Machinations
Bereft of legal criticism, the supporters and sympathizers of the MDC have resorted to conspiracy theory.
It is not about their constitution, its interpretation or any judgement with findings contrary to those by Justice Mushore.
Rather, there is a hidden political hand. Magaisa quotes from Levitsky and Ziblatt to argue that the ruling is part of a masterful use of the courts to sideline the opposition as done by Ecuadorian President Rafael Correa in 2011.
Coltart asks whether a Court could ever rule against ZANU PFand Mnangagwa in the way the High Court ruled against Nelson Chamisa’s MDC .
It is certainly true that Temba Mliswa and Didymus Mutasa’s Constitutional Court challenge of their expulsion from ZANU PF andparliament was unanimously dismissed.
However, it bears remembering that when Tendai Biti and 20 other members of parliamentsimilarly challenged the MDC for their expulsion, they were also unanimously dismissed.
There is no record of the judiciary issuingjudgments to the opposition which it does not render to the ruling party.
When the Constitutional Court had the opportunity for,
to use Magaisa’s words, a “calculated existential assault upon the country’s
leading opposition,” it actually upheld Morgan Tsvangirayi’s claim as
the bona fide leader of the MDC.
Similarly, in the Murimoga case, the High Court did not gleefully accept the opportunity to undermine Nelson Chamisa’s legitimacy. It actually found in his favour and ruled against the applicants.
It is not apparent why a judiciary on a warpath against the opposition would rule in their favour in these high profile cases. This undercuts Magaisa’s claim of an orchestrated use of the courts to sideline the opposition.
Legal Genesis
It is helpful to recall previous cases relevant to this discussion.
In Movement for Democratic Change vs. Thokozani Khupe andTwo Others HB 111/18, Nelson Chamisa’s MDC approached the High Court to stop Dr. Khupe from using the name MDC, MDC-Tor any of its derivatives.
That case was dismissed since
no court had ordained Chamisa’s party as the legitimate MDC.
However, Justice France Bere singled out Dr. Khupe’s insistence on constitutionalism as highly commendable.
Chamisa appealed that ruling in Movement for Democratic Change vs. Thokozani Khupe and Two Others SC369/18.
In that case, he agreed to have the matter sent back to the High Court to determine the issue of the legitimate MDC party.
But having so agreed, Nelson Chamisa quietlyremoved it from the High Court roll, with members
of Dr. Khupe’s party celebrating the
removal as evidence that Chamisa was aware
of the weakness of his claim.
The legal question of the legitimate MDC could have easily been settled if Chamisa had pursued his case in the High Court. Instead, and possibly realizing the weakness of his claim, he turned to the people to vote in the election and justify his position by popular acclamation. This explains both the party disdain for constitutionalism and their unrelenting populist critiques of the judiciary.
Populist Attacks From The Right
The language of non-interference from the courts is usually associated with the conservative right as it seeks to shield its interests form the progressive agenda pursued by the liberal left. The political right prefers popularly elected representatives (populism) taking precedence over judges limiting their power by law (constitutionalism).
Thus, in spite of having been the
first ones to pursue legal action to stop Dr. Khupe from using the MDC name
in HB 111/18, Chamisa’s MDC now insists that the courts must not interfere
in party business.
Coltart has called the Mashavira judgement
a pathetic interference with the due process of a party whilst the MDC has
stated that selection of their party leaders can never be a judicial process.
Magaisa refers to the internal affairs of companies as a comparator for
non-intervention by courts when matters can be solved by internal majorities.
It is apparent that this courtroom defeat has led to a migration by the
opposition to the political right, arguing for the primacy of majorities in
lieu of constitutional compliance.
For these reasons, the MDC has
retorted that, “over 500
000 members… have been involved in a process of electing their leaders atlower levels, from branch to the province.”
Coltart says the legitimate faction of the MDC is that which garnered 2,4 million votes in the last election.
Alex Magaisa summarises the point;
…the wheels of justice are so far behind the political realities that it leaves judges and the justice system looking utterly out of touch and the subject of ridicule.
The fact of the matter is that the dispute which Justice Mushore purports to resolve hadalready been settled by the court of politics…Both factions of the MDC contested and the results are there for all to see.
Thejudge wants to rewrite this political outcome under the veneer of legality.
In that
paragraph, Magaisa inadvertently presents the most concise defense of the deferential judicial
method I have read in recent history.
That is to say, court decisions
must reflect political realities and defer to electoral victors, their
constitutional impropriety notwithstanding.
The court of law must necessarily
follow the “court of politics.” It is about numbers,
majorities and ensuring that legal remedies do not alter political outcomes.
Yet constitutionalism has never
been about numbers, for we would simply subject ourselves perpetually to the
majority. Constitutionalism limits majorities so that populism does
not devolve into a tyranny of the majority.
It protects “discrete and
insular” minorities and gives them a fair shot in a system permanently
structured to their disadvantage.
It is only through
constitutionalism that a female candidate from a minority ethnic group had an
opportunity to lead, even if temporarily, the biggest opposition party in the
country. This is laughed off
by Coltart because she got less than 1% of the vote in the presidential
election – yet that is irrelevant.
The MDC Constitution never
required the most popular Deputy President of the party or the most popular
member of the MDC to take over, but simply the officer elected as Deputy at
Congress. Using populist arguments against constitutional dictates is not only
unfortunate but dangerous. ZANU PF, and not the MDC, has been the most
consistent victor in Zimbabwean elections. Inviting the courts to refrain
from altering political realities and outcomes is to not only support a
deferential treatment towards ZANU PF, but also celebrate assimilation of the
courts as agents of political, and not legal, realities.
Nothing could be more dangerous
for our already fragile democracy.
Conclusion
It is highly likely that the reason for lack of substantial legal criticism of
the Mashavira judgement is that none exists.
This explains the singular
focus on mass popular appeal. It is apposite to quote
Coltart fourteen years ago as he left Morgan Tsvangirai’s MDC,”Iam not swayed by mere numbers; if I were I would have joined Zanu PF a long time ago.”
The party which is admonishing the Courts because of their showing in the last election should be cautious in its insistence on the mantra of numbers and populism when those have already been weaponized by ZANU PF.
The current critique from the
opposition strongly suggests that they are not so much averse to the Courts as
they are envious of ZANU PF and wish to replace its brand of
populism with their own in lieu of introducing the much needed
culture of constitutionalism and respect for the rule of law.
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