Do courts have jurisdiction over internal party disputes?

By Alex T. Magaisa

OPINION – The short answer to the question whether a court has the jurisdiction (power) to make a determination over a legal challenge brought by a member against a political party is, of course, that it does. This is trite.

There can be no question about that. S. 171(1) of the Constitution of Zimbabwe provides that the High Court “has original jurisdiction over all civil and criminal matters throughout Zimbabwe”. This is an unqualified power, which confers upon the High Court the power to preside over any kind of civil dispute, whether or not it has political connotations.

But this simple answer has been clouded by political statements made by senior politicians and commentary in the state media, to the extent that there is now a lot of confusion and the public is beginning to have doubts over the competence of the courts to handle a matter such as the legal challenge that has been brought by Didymus Mutasa and Rugare Gumbo against Zanu PF and its leadership.

The purpose of this article is to provide clarity over that issue and to confirm that courts do have the power to handle such cases.

In fact, for constitutional lawyers the Mutasa-Gumbo case allows the courts an important opportunity to test some of the key features of the new constitution, such as the notion of the horizontal application of the Declaration of Rights and the substantive nature of political rights, which I will explain in this piece.

I have noted that, in the last few days, a certain view has been propagated largely by politicians and the State media, suggesting that the internal affairs of political parties are somehow beyond judicial scrutiny. This view has appeared in various guises, with a thread seemingly suggesting that when something is done in terms of the party constitution, it means the national constitution has nothing to do with it.

Overall, an impression has been given that whatever happens within political parties is political and internal to the political party and must, therefore, be resolved within the confines of the political party. Consequently, the view suggests, national courts and the national constitution have no role in the resolution of disputes arising in that context.

This view and all variants of it are profoundly incorrect and based on a poor comprehension of the law. If anything, it is a political view which is designed to exclude judges of handling what are deemed to be political cases.

While it is true that what happens in a political party constitutes its internal affairs, there is no bar to members of a political party taking legal action to enforce their rights within that political party.

What seems to be the basis of the incorrect view peddled by politicians is the confusion between legal merit on the one hand and political wisdom on the other hand.

And while criticism of the courts is commonplace, being the President of a country is by no means commonplace. Presidential criticism of the courts cannot be regarded as commonplace, particularly where the courts are seized with a matter.

In 2011, Chief Justice Chidyausiku himself made a passionate plea against politicians interfering in the judicial process. Recent comments cannot have pleased him or members of the judiciary.

Indeed, when as Prime Minister, Morgan Tsvangirai in 2011 communicated his displeasure over a case involving the nullification of the election of the Speaker of Parliament, he was lambasted by Zanu PF and the State media for interfering with the judicial process.

The same characters that are now trying to justify President Mugabe’s statements were at the forefront of castigating Tsvangirai’s behaviour. They were right then and they are wrong now. What is lacking on their part is consistency.

Returning to the issue, while legal action by a member of a political party might be lacking in political wisdom, it does not mean that it is devoid of legal merit. The courts deal with legal issues, and are unconcerned with the political wisdom of legal challenges. They do not deal with the politics but with the law.

There are three grounds upon which it is permissible for a member to challenge the validity of conduct of a political party. These grounds are based on constitutional rights, contractual rights and administrative rights.

I will briefly discuss each of these grounds to demonstrate why it is wrong to suggest that a member cannot approach the courts for legal redress and why it is incorrect to argue that the courts or judges do not have competence to deal with such matters.
Contractual Rights

It is trite that the relationship between an organisation and its members is contractual. The terms of contract are usually captured in the constitution of the organisation. If the terms of this contract are breached, a member can approach the courts of redress.

This is why a member of a social club can sue the club in court for relief if he or she feels that his or her rights have been infringed. In the same way, the company constitution – its articles of association and memorandum of association – constitute a unique contract, between the company’s members and between the members and the company.

Therefore, legal action can be founded on the contract between members and the organisation. This is the same logic that applies within political parties.

A member has a unique contractual relationship with his or her political party and if the terms of the constitution have been breached and the member is aggrieved, he can lawfully approach the court and seek relief on that basis. There is nothing to prevent the courts from handling such matters.

Constitutional Rights

There are at least two particular rights in the constitution which can be the basis upon which a political party can be brought to court by a member seeking legal redress. The reason is because a political party must act in accordance with the national constitution, which is the supreme law of the land. One of the key features of the new constitution is the explicit recognition of its horizontal application as between non-state actors.

In plain terms, horizontal application means a non-state actor can sue another non-state actor for constitutional violations. This is in contrast to the traditional vertical application of the constitution, where non-state actors are restricted to taking action against the state.

This means when an individual believes that a private company or organisation has violated his constitutional rights, he is permitted on the basis that the constitution applies horizontally, to approach the courts seeking constitutional relief against the private company or organisation.

Thus s. 2(2) of the constitution makes it clear that the obligations imposed by the constitution are binding on every person, natural or juristic, apart from the State and its agencies.

In addition, s. 45(2) of the constitution makes it clear that the Declaration of Rights is binding on natural and juristic persons to the extent that it is applicable to them. These clauses confirm the horizontal application of the constitution and the Declaration of Rights in particular.

On this basis, it is possible that a member of a political party can take legal action against his political party, alleging a violation of his constitutional rights. It means that a political party can be subject to judicial scrutiny in terms of the national constitution.

It also means a party constitution or its terms or its amendments can be challenged by an individual on the basis of invalidity under the national constitution. This is why, in fact, after the new constitution came into force, every political party needed to review its constitution to ensure that it is consistent with the terms of the national constitution.

A member who believes that the party constitution violates the national constitution has every right to approach the courts to challenge the valid of the party constitution or its individual terms.

The party can, if it wants, justify the violation on the basis that it is a permissible limitation in terms of s. 86(2) in which case it must be shown to be “fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom …”

Political Rights

In addition, there are specific political rights, provided for under the constitution, which must be protected in so far as members participate in their political parties. S. 67(2) of the constitution provides that,

“Subject to this Constitution, every Zimbabwean citizen has the right— (a) to form, to join and to participate in the activities of a political party or organisation of their choice”.

This right was modelled along the same lines as the right enshrined in the Constitution of South Africa and it is helpful to see how it has been interpreted by the Constitutional Court in that country.

In the case of Ramakatsa and Others v Magashule and Others (2012), the applicants were members of the ANC who were complaining of irregularities that had plagued the selection process of delegates to attend the party’s national conference in 2012.

They alleged, among other things that their constitutional right to participate in the activities of a political party had been violated. The Constitutional Court held pointed out that the right to participate in the activities of a political party imposes a duty on every political party to act lawfully and in accordance with its own constitution.

It recognised the right of every member to demand compliance by the leadership with the constitution of the political party.

Whilst the Zimbabwean courts are not bound by the decisions of the South African courts, given the similar wording and the shared constitutional and democratic values, they are unlikely to ignore that weight of judicial reasoning in the Ramakatsa case.

The point here is that the dispute as between a party member and the political party is justiciable and it would require a compelling reason for the court to decline exercise of jurisdiction in such a matter.

The point here is that a member of a political party is perfectly entitled to challenge a political party on the basis that the irregularities and impropriety of its conduct violate his constitutional right to participate in the activities of the political party.

Whether or not the matter has merit is for the court to decide but the right of the individual to approach the court and the power of the court to make a determination cannot be contested or denied.

Right to Fair Administrative Justice

The third ground upon which the courts can exercise jurisdiction and the second of the constitutional rights is the right to fair administrative justice in s. 68 of the national constitution. This was not considered in the Ramakatsa case but it had also been cited by the applicants who were suing the ANC.

Here an aggrieved applicant may argue that the irregularities and impropriety in the conduct of the political party or its leadership violate the member’s constitutional right to fair administrative conduct. S. 68(1) provides that every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.

Administrative conduct is defined as including any decision, act or omission of a public officer or of a person performing a function of a public nature. Nevertheless, the proper implementation is that it is not limited to such acts or functions and that it must be broadly defined.

In any event, it must be noted that while political parties are private entities, they have a quasi-public functions, not only because they are the instruments through which the rights to participate in the activities of political parties are exercised but also because they are entitled to and actually receive funding from the State.

This is why s. 67(4) actually places a mandatory obligation on the State to provide for political funding to political parties, “for the purpose of promoting multi-party democracy”. This adds weight to the view that political parties are under a special obligation to ensure that their constitution and their conduct is consistent with the national constitution.

In conclusion, there can be no doubt that political parties can be challenged in court by their members and that courts have jurisdiction to handle such disputes. Whether or not there is political wisdom in taking such legal action is a separate question. But this does not mean the law prevents members of taking legal action against their parties. Such action might not make political sense, but it does not mean it lacks legal sense.

What is odd is that Zanu PF leaders and commentators are behaving as if there is something novel and extraordinary about the Mutasa and Gumbo legal challenge. The truth is that such legal actions by members against their political parties are not new.

The reason Speaker of Parliament Jacob Mudenda has refused to accede to the request by the MDC-T for the expulsion of MPs elected under their ticket, is because he recognised that those MPs were challenging in court the validity of the party’s decision, itself an internal matter.

Indeed, during the GNU, President Mugabe himself insisted on recognising Arthur Mutambara as a principal ahead of Welshman Ncube on the basis that the courts were still to rule over the internal leadership wrangle within the MDC.

It will be interesting to see how the courts handle the matter. But if they refuse to deal with it, it won’t because they have no power to do so. They do, both in terms of members’ contractual rights and in terms of their constitutional rights, in particular, s. 67 and s. 68.

Alex Magaisa can be reached on wamagaisa@yahoo.co.uk. You can visit his blog: https://newzimbabweconstitution.wordpress.com/

Acknowledgment: I wish to thank my learned colleague, Advocate Tererai Mafukidze, for bringing to my attention the case of Ramakatsa and Others v Magashule and Others (2012) decided by the Constitutional Court. All responsibility for the contents of this article is, however, for me to carry alone.