By Innocent Gonese| Over the last week the people of Zimbabwe have been preoccupied by two main issues: The Corona Virus epidemic and the Supreme Court Judgment in the case of MDC et al vs Elias Mashavira et al handed down on the 31st of March 2020 which has also been dubbed the Corona Judgment.
The mere fact that as Zimbabweans we have been diverted from focusing on a global epidemic speaks volumes about the nature of the judgment and the timing of its delivery.
There is something clearly amiss about the Judiciary choosing to deliver its ruling in a matter reserved several months ago at a time when we are supposed to be grappling with a monumental global crisis and when the Chief Justice himself had indicated that only urgent matters would be handled by the courts otherwise most matters would be postponed.
In analysing this judgment one should not lose sight of the political context and how our Judiciary has handled itself not just in this case but in several others and in particular I will refer to the Constitutional case that Honourable Jessie Majome and I, filed in against Constitutional Amendment no 1, which was heard early last year and whose judgment was handed down on the same day.
Firstly there was an inordinate delay in delivering the judgment. While I am not in agreement with the findings made by the Supreme court in relation to the proceedings in the National Assembly, at least the court accepted our submissions relating to the Senate Proceedings but in its Final Order then gave the Executive a second bite at the cherry by suspending the operation of the Order of invalidity for 180 days to ensure that the order is a virtual brutum fulmen.
Surely having found that the two-thirds threshold was not met in the Senate the amendment should simply have been set aside.
Now turning to the issue at hand, I will start by giving the background as the law does not operate in a vacuum .
It is common cause that since its formation, the mainstream Movement for Democratic Change (MDC) has given The Zanupf regime a run for its money and inspite of various machinations it has remained standing for over 20 years now.
One does not need a very high Intelligent Quotient (IQ) to link the delivery of the judgment at a time when people’s movements are limited and the police presence at Morgan Tsvangirai House as well as Thokozani Khupe’s triumphant tweet and Morgen Komichi’s prepared speech.
All these events point to the sinister involvement of the illegitimate regime and coupled with the subsequent re-emergence of Obert Gutu and his tweets; one sees the unmistakable footprints of Zanupf
Going back to the pertinent case, Elias Mashavira calls himself a District Organizing Secretary from Gokwe who was legally represented by a legal practitioner from Mutare in Manicaland (Ashel Mutungura) and at the Appeal his lawyer was assisted by Sarudzai Chatsanga from Nyanga.
Honourable Senator Mwonzora comes from Nyanga and all this could be a coincidence but the possibility of an indigent litigant who did not even attend at the Supreme Court on the 31st March having mounted such a costly litigation merely to vindicate his rights, where there is little or no tangible benefit to himself stretches credibility too far.
I submit that Elias Mashavira was simply a front and the real Applicant was none other than the person who did not have the courage to bring the case but whose behavior was always suspicious but there will be no prizes for guessing who that is .
I was present in the Supreme Court on the day that the case was argued and all those who are familiar with court proceedings will appreciate that when Counsel are presenting arguments you can read the Court’s mindset and clearly Justices Patel and Garwe appeared to be on point and this emerges from the judgment when it interrogates the issue of mootness and that should then have led the Court to the inescapable conclusion that whatever the other controversial findings of the court there was simply no question of upholding the High Court judgment in terms of the Order given then worse still the one on Appeal.
This is so because you can not unwind the hands of time and go back to the past. The parties have moved in directly opposed directions and their positions are not reconcilable.
Indeed, Khupe has now become an acolyte of the illegitimate regime and even imposing her for one second is a non starter.
Other people who were members of the National Council like Honourable Majome have retired from politics and she is now a ZACC Commissioner, while Honourable James Maridadi is now the Ambassador to Senegal
We also have people like Patrick Chitaka who flirted with People First then Nkosana Moyo before standing as an independent before announcing his retirement and then becoming a commentator and lambasting the MDC Alliance as a terrorist organization, now saying that he is suspending his retirement.
Then you also have the likes of Obert Gutu waxing lyrical about recalling MDC Alliance MPs oblivious of his embarrassing performance as a candidate in Harare East in the 2018 elections.
These are practical considerations which a serious court of law should have thought about before it issued a determination.
Granted some of them were not before the court, but when it took cognisance of the outcome of the 2018 general elections the court must also have been aware of the different paths taken by the parties in particular Khupe’s involvement in POLAD and the politics of resistance persued by Advocate Nelson Chamisa and the MDC Alliance party.
This is not to say that the other findings of the court are legally sound. Far from it as both the court a quo and the Appeal Court failed to interrogate the lengthy delay in challenging the appointment of the Vice Presidents more than two years after the event.
The Application was only made in September 2018 and the lame explanation that he only acted after seing the opinion of Advocate Erick Matinenga is devoid of logic. How did he come across the opinion and in what circumstances?
Any serious court would be expected to interrogate such aspects as ignorantia juris non excusat (ignorance of the law is no excuse).
That should have been fatal to the application.
It was also in the public domain that one Parston Murimoga tried to challenge the appointments in 2016 and no one persued the matter and for someone to resucitate the issue and succeed so long afterwards is a sad indictment on our courts.
The other issues relate to double standards in our judicary when faced with similar facts regarding the exhaustion of domestic remedies in the Kudakwashe Bhasikiti case the court ruled against him but in the recent case they found a way to accommodate Mashavira.This is curious and leads one to conclude that the law is applied selectively to suit predetermined objectives.
Law is not an exact science and courts can come up with a judgment which some people can applaud but it is necessary for Judges to introspect before making such far reaching decisions with equally far reaching consequences.
The adage that Justice must not only be done but must be seen to be done is very apt in this case. This will go down as a grave injustice and it will cause serious embarrassment to our courts for many years to come
Did the Court look at the import of ordering an Extraordinary Congress a year after the Ordinary Congress was due? All the terms of the Office Bearers were supposed to expire in October 2019. Is it assumed that the Court has ipso facto extended these terms?
Further, the agenda of the so called Extraordinary Congress is just one; to elect a President and what about the other office bearers?
All these are questions which any serious court should have examined armed with the Constitution they had before them. That they did not is cause for serious concern.
However the most glaring shortcoming is the failure to appreciate that there are no two MDC T’s as claimed by Professor Lovemore Madhuku
The Judges had before them clear submissions that the party which contested under Advocate Nelson Chamisa was the MDC Alliance which subsequently had a Congress in May 2019 before the Appeal Hearing.
This was the clearest evidence that the case was moot and the judgment is not capable of enforcement.
I have heard suggestions that the MDC Alliance family should comply with the Court Ruling and that this would be upholding the Rule of Law.
With respect it is like trying to close the stable door when the horses have already bolted. It is simply not practicable for numerous reasons.
This is why in divorce cases once a marriage has irretrievably broken down no court will Order the parties to reconcile but it will rather deal with the ancillary issues.
In conclusion the judgment delivered by Justice Patel on the 31st March 2020 will be rightly or wrongly seen as a political judgment as it is baffling as to how the esteemed judges failed to appreciate that the final order granted was no longer feasible.
Innocent Gonese
Secretary for Legal Affairs
MDC Alliance
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