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Brighton Mutebuka: Critical analysis of the Supreme Court’s decision in MDC, Chamisa & Komichi v Others

By Brighton Mutebuka

Amidst a nationwide lockdown induced by the global Coronavirus pandemic, the Supreme Court blindsided the nation when it delivered its long awaited judgment following Nelson Chamisa’s appeal from the High Court.

Brighton Mutebuka
Brighton Mutebuka

By that act alone, given the lack of urgency involved and given that it had suggested most court business would be shut down, it raised many eyebrows across the divide. The lead Judgment was delivered by Justice Bharat Patel. The court’s judgment stands up to scrutiny to a large extent.

For the record, there can be no doubt that the court’s primary findings pertaining to the following: a. the unconstitutionality of the late Morgan Tsvangirai’s appointment of the additional two Deputy Presidents, Elias Mudzuri and Nelson Chamisa and, b. the gross irregularity of the latter’s initial ascendancy to the helm of the MDC-T leadership are beyond reproach and uncontroversial.

The above represents the high watermark of the court’s approach to the case at hand, one of the most significant in Zimbabwe’s young and nascent democracy.

Once we get that out of the way, we enter a zone riddled with controversy, lacking the required intellectual rigour, displaying alarming gaps in reasoning and failing to resolve the core issues of the day with sufficient depth and clarity displayed such as to render the decision controversial and highly inadequate jurisprudentially on account of falling far short of what is expected from a Supreme Court decision.

This primarily relates to issues centred on “mootness”, the legal and political identities of MDC-T and the Final Order. The decision simply does not inspire confidence in the public and has further dented the Supreme Court’s greatly diminished reputation under Chief Justice Luke Malaba’s stewardship.

Given the complexity of the matters canvassed in the Judgment, I have tried to simplify and break them down through creating sub-headings systematically exploring crucial aspects of the decision on a step by step basis.

Did The Court Adequately Dissect The Issue Of Moving On?

By far the most contentious aspect of the Judgment is on the “Mootness of the Matter” subject which is explored from page 32 onwards. In it, it is highly significant that the court records that Mr Mutungura, Counsel for the 1st Respondent, Mr Mashavira takes this position in respect of the fact that Thokozani Khupe had moved on:

Mr Mutungura accepts that the third respondent may have moved on. He contends, however, that she is still part and parcel of the Party. Furthermore, it was not MDC-T but MDC-A that elected the second appellant as its President. Therefore, the issues in casu are not moot.”

Dr Madhuku, Counsel for the 3rd Respondent is recorded as having submitted thus: “Mr Madhuku denies that the third appellant has moved on. There are now two groups calling themselves MDC-T and there is therefore a leadership wrangle that must be resolved. In any case, what happened on 15 February 2018 was a blatant illegality and the failure to comply with the Party constitution is fatal.”

Advocate Thabani Mpofu, on page 33 of the Judgment, is recorded as having submitted that Mr Mashavira’s Founding Affidavit had referred to Thokozani Khupe as having ‘purported to hold her own Congress in April 2018’ and ‘was now leading her own party’, and the fact that Thokozani Khupe’s own Opposing Affidavit had also accepted that she “is no longer a member of the Party having decided to form her new party” and that these were “undisputed averments and allegations of fact” stemming from which Khupe could not “possibly seek any relief from this Court” as the proceedings had been “overtaken by lawful election processes conducted by the Party at its Congress held in June 2019” rendering the proceedings moot.

The court’s findings in respect of the above submissions are found on page 34. JA Patel finds that the record suggested 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 in the Party.”

With the greatest of respect to JA Patel, the use of “may” is not only highly inaccurate, it is also disingenuous and highly misleading. It contradicts what is reported to have been her own understanding of the situation from her own Affidavit, as stated above, it also contradicts information that is widely available in the public domain.

This is exacerbated by the fact that the court clearly fails to justify its use of “may”, and the premise upon which it adjudges that Thokozani Khupe retains her political rights therein. The use of “may” denotes doubt / uncertainty.

There is also no assessment of why her conduct did not constitute waiver by reference to the evidence, case law or other authorities. A sweeping statement is simply made. What is the objective basis upon which doubt could have been entertained in such a situation?

This is an area that warranted detailed examination given the legal & political significance of Khupe’s own reported evidence in her Affidavit, her deliberate and voluntary participation in her party’s Congress and participation in the 2018 Election as its leader and the fact that this could have conceivably resulted in her assuming the Presidency of Zimbabwe and dominating Parliament with her candidates had she been successful.

There can be no doubt that such a trajectory clearly fundamentally transforms the calculus. In other words, did Khupe not try to have her cake and eat it? Does that not amount to a vindication of her political rights, albeit not in the manner she would have done had she been accorded her rightful place as the Acting President of the MDC-T?

It is submitted that Khupe’s Congress should have been fatal to her claim since through it she was making a bold assertion of her political rights. The question would have been different had she not pursued such a course of action. As has been argued elsewhere, this should have been weighed in the round when assessing the proportionality & equitability of the decision.

It may very well be that the court would still have concluded in her favour had it explored this area in sufficient detail, however, the distinct point is that it did not, which amounts to an error of law or material misdirection following on from the High Court Judgment’s own deficient reasoning on this crucial aspect of the case.

On a related point, Dr Madhuku’s contention that Thokozani Khupe had not moved and there were now two groups ‘calling themselves of MDC-T’ is taken at face value and not expressly addressed / examined / critically analysed by the court.

Developing this point to its logical conclusion, the political standing of MDC-A is not engaged with at all, which is astonishing given that it had political rights before the same court and had voters who had expressly chosen it during national elections in 2018 with substantive Constitutional rights which would be affected or interfered with by the decision and had been referred to in the evidence, including even by Mr Mashavira’s Counsel as we have seen above.

We are left in the dark concerning what the court would have considered adequate to constitute “unequivocal relinquishing of political rights” on the spectrum by Khupe and why. That is a glaring absence of intellectual rigour or adequate reasoning.

Mootness

The next chapter is exploring “mootness” on its own, apart from “moving on”. On page 33, the court accepts that the first strand of mootness arises if the decision becomes academic by reason of changed circumstances terminating the controversy between the parties – rendering the jurisdiction of the court unsustainable.

It is submitted that the existence of Khupe’s MDC-T, her subsequent congress and participation in national elections and the incorporation of MDC-A and its own similar / parallel chain of events are clearly capable of meeting that threshold.

In relation to the second strand, the court takes the position that there is no absolute bar as the court retains a discretion to “lift the veil” on mootness where the interests of justice dictate this.

The court goes on to cite authorities justifying the provision of a determination, rather than a Final Order in such cases. It goes on to take “judicial notice”, [which is a highly significant way of acknowledging a state of events] of Chamisa’s elevation to MDC-A and his remarkable performance in the general election of 2018 in juxtaposition to Khupe’s woeful performance.

The Issue Of Control – Did The Court Make Findings Open To It?

The court proceeds to explore the issue of control of the Party, while invoking the doctrine of defacto and effective control by reference to the case of Madzimamuto v Lardner-Burke to try and draw an analogy with Chamisa’s circumstances before it.

It went on to find, on page 38, that it was “inclined to agree with the appellants that the present matter has indeed been rendered moot and academic” before alarmingly noting that this was not the end of the matter.

On page 39, basing its position on the fact that “the Party” was the main opposition party and would potentially one day assume power and was a Social Democratic Party grounded in democratic ethos, the court ruled that Chamisa’s elevation “was fundamentally flawed by gross constitutional irregularities” and corrective action needed to be taken to ensure compliance with Section 3(1) of the National Constitution premised “on the rule of law and its concomitant doctrine of the legality as well as the principles of good governance,” ruling intervention to be a matter of ‘public importance to the Party, its members and the governance of political parties generally.’

It has to be conceded that the court’s assessment and condemnation of Chamisa’s ascendancy is unimpeachable and free from controversy. However, as will be explored later, there is a great deal of controversy concerning whether or not the nature of the intervention was proportionate and struck the right balance in the particular circumstances of this case.

The first area of contention arises from the court’s invocation of the Madzimbamuto precedent, which is clearly materially flawed and irredeemably leads it astray. This is because, that authority does not sit on all fours with the facts in this case.

It is my respectful submission that the area of divergence centres primarily on the fact that in the former, we were faced with a racist colonial minority regime which had usurped power during colonial times, while disenfranchising the black majority and the case ended up before the Privy Council, which was clearly duty bound to act as a gatekeeper and surely render a decision reiterating the primacy of the Crown over her dominions.

Much more importantly, in the present case, both Khupe and Chamisa were involved in a national election with parties that they both controlled.

The latter had even proceeded to try and cure the irregularities through holding a separate Congress through a separate political entity and using a political process which was markedly different not only to the circumstances which obtained in the Madzimbamuto case but also those which governed the National Council meeting of February 2018.

What is disappointing is that on a subject of such crucial importance, the Supreme Court could only master one single case, an ill-fitting colonial relic. It is submitted that the court could have easily drawn from other more recent jurisprudence if not from Zimbabwe then from the region, and even leading Journals and textbooks on the matter from the region or the Commonwealth, for instance Professor John Hatchard & Dr Tunde I. Ogowewo’s text, “Tackling the Unconstitutional Overthrow of Democracies” to induce some depth.

There needed to be a conscious attempt to explore instances that involved not just de facto effective control, but also subsequent periods where contested de jure status had been achieved following credible elections that had taken place.

Exhaustion Of Remedies

This is another area of contention. We start with page 18 where JA Patel accepts Advocate Mpofu’s submission that with regard to the doctrine of Estoppel, which bars a party from relying on something they ought to have objected to earlier:

that quiescence usually amounts to acquiescence. Many developments have taken place within the Party since the second appellant was appointed as Deputy President and later as Acting President and, more recently, as the Party President. The first respondent allowed this position to continue and only reacted to challenge that position several years later.”

This ground is explored on page 19 of the Judgment on the last paragraph. This pertains to the “ignorance of the law excuse” provided by Mr Mashavira for the volte face for having initially participated in the processes which gave rise to Chamisa’s ascendancy before later seeking exoneration on account of having been ignorant of the law.

The court’s position is astonishing given that it is trite at law that ignorance of the law is no excuse. In any event, the court also appears to have taken Mr Mashavira’s averments at face value.

Evidence that is in the public domain is that at the time of Tsvangirai’s death on 14 February 2018, there already were very serious public disagreements amongst all the Deputy Presidents pertaining to who was the rightful heir apparent and certainly all MDC party leaders across the country would have been aware of this.

Given this development, the court needed to make its decision by reference to a specific timeline, i.e. clear reference to material confirming that such legal opinion was provided and when this was rendered, and the circumstances under which Mr Mashavira had access to the material. That is the minimum level of analysis expected at Supreme Court level.

On page 18, while exploring the issue of the availability or adequacy of domestic remedies, the court takes this position:

Having regard to these provisions, I have no doubt that the experience and credentials of the Tribunal’s membership are impressive, no doubt minimising the possibility of bias or predisposition …. There was no point in invoking domestic remedies that had been both politically and practically undermined.”

The court has referred to the fact that part of the reasons why it had misgivings in relation to this was because Chamisa was in control of the proceedings which took place afterwards, but that reasoning was not proffered by the High Court.

Much more importantly, this overlooks the fact that either by reference to the MDC’s Constitution or outside objective sources or case law, the court did not provide any authority for the proposition that where a domestic remedy was being pursued and had a bearing on the party’s current leader’s position, by virtue of that point alone it was rendered obsolete.

This is a sweeping and dangerous assumption to make in relation to voluntary organisations particularly in view of the position that the court had taken earlier as explored below.

How can the above conclusion be reconciled with the earlier position that the court had taken in respect of the conclusion that on the strength of Article 14.3 of the Party Constitution, there was “no doubt that the experience and credentials of the Tribunal’s membership are impressive, no doubt minimising the possibility of bias or predisposition.”?

If there was a reasonable premise for concluding that the possibility of bias of predisposition could be minimised, it follows that – that needed to be put to the test, after and the outcome used as an unimpeachable reference point.

The Remedy – Is It Proportionate Under The Circumstances?

The court went on to order a return to the status quo that prevailed before the ‘irregular and unlawful appointments to the Party presidency took place.’ It asked for an extension of the time limit [without any reference to the Constitution or submissions that had been made before it] and the modification of the High Court Judgment to give effect to its decision.

To give the court its due, predicating its decision on the degree of public importance of the matters ventilated, it did not make an order as to costs, which each party being ordered to meet its costs. It is submitted that this is a welcome and progressive development in such cases as opposed to the draconian position that had been taken by the High Court.

It is submitted that the court’s decision is not proportionate as it does not strike the right balance between recognising the prejudice suffered by Thokozani Khupe, the interests of Mr Mashavira, the passage of time, Nelson Chamisa’s resounding success in the national election, Thokozani Khupe’s woeful performance, Thokozani Khupe’s mitigatory measures which involved the incorporation of a new Party via Congress, Nelson Chamisa’s attempt at curing the irregularities by staging the MDC-A Congress, the potential massive disenfranchisement of MDC-A voters within and without the party, the potential harm on democracy and repulsion that would arise of seeing Khupe effectively being foisted or thrust on an unwilling membership through “Judicial Activism”.

Additionally, the court did not consider the severe if not crippling administrative difficulties that would arise in resurrecting structures 6 years after the event and the fact that whilst Morgan Tsvangirai’s decision to appoint an additional two Vice Presidents was undemocratic and ultra vires the Constitution, ultimately, as undesirable and unacceptable as it was, it had been ratified by the National Council, the same body which conducts elections and would have been brought into line with that Constitution had the relevant amendment been tabled.

It is also very clear that the Supreme Court did not exercise its mind properly when making an order calling upon the Acting President to convene an Extra-Ordinary Congress within 3 months from the date of the order amidst a debilitating pandemic ravaging the nation and without any scientific evidence indicating that this would have been overcome by then.

Finally, it is submitted that had the facts suited the case, this would potentially have been a very progressive Judgment. Regrettably, it will mire the Supreme Court in controversy and scandal. Very strong and compelling facts are normally needed before courts make such far reaching decisions, lest they be accused of indulging in “judicial activism.”

The court’s decision would have carried considerable weight and resonance had Thokozani Khupe steered clear of embarking on her own Congress, had she performed reasonably well in the subsequent national elections which followed and had Nelson Chamisa not conducted his own Congress with a political party holding a different name and entered into a national election where he performed remarkably well whilst sufficiently distinguished from Khupe’s Party.

How absurd is it that the court, having accepted that its decision was moot, has gone on to make a far-reaching decision literally trying to resurrect a political leader who is now largely irrelevant and on the fringes / margins of the body politik? Effectively, the Constitutional rights of 45 000 have been held to hold sway over those of over 2 million voters, creating revulsion and a democratic deficit.

It is submitted that the proportionate decision would have been to determine that Chamisa’s initial ascendancy was marred by gross irregularities before going on to determine that events had moved on and in future the court would not hesitate to intervene in the right circumstances.

The Political & Legal Impact Of The Decision

While the decision is primarily & ostensibly trained on forcing the opposition to convene an Extra Ordinary Congress to cure the acts that were ruled to be ultra vires the Constitution, in reality it will be used by Thokozani Khupe’s faction to try and seize MDC-T political and financial assets which are under the control of Nelson Chamisa’s MDC-A.

Whilst the court took the view that there is only one genuine MDC faction, Khupe’s, in reality there are two distinct political parties, MDC-A and MDC-T.

The former appears to have theoretically presented themselves as still being the MDC-T whilst taking practical steps to distinguish themselves to voters and in relation to commercial and contractual relationships. Theoretically, legal ownership of the party’s name might reside in Khupe’s faction, but “beneficial” ownership of the political terrain lies with the MDC-A.

As Khupe’s faction is currently enjoying a cosy relationship with the establishment, the expectation is that, with the support of the latter, manoeuvres will be made to try and wrest control of the MDC-A’s MPs, Harvest House and funds that are in the bank.

From a legal standpoint, it is submitted that any asset that is in the MDC-A’s name political [MPs] or financial is beyond the reach of the Supreme Court’s Order on account of Intellectual Property as this effectively belongs to a separate legal persona.

This would require a separate Court Oder specifically addressing this, which would be open to the challenge of the MDC-A and its members, creating the basis of another legal showdown. In relation to old assets, this would need to be forensically made out, which takes time and painstaking work whilst also being open to legal challenge.

Harvest House is clearly a prized scalp and comes with huge symbolic value as it is the spiritual home of the opposition movement.

It is reportedly owned by a Trust which then leases the same to the MDC-A. If there is a valid Lease Agreement between the Trustees and the MDC-A, it follows that the MDC-T would not have a right of possession or occupation and summary eviction would not be possible.

The doctrine of Privity of Contract entails that only the Landlord would have the right to effect eviction and even then, this would be a lengthy exercise that has to be done via issuing Summons only if there are reasonable grounds to seek eviction and the commercial relationship has become strained. That process can also be opposed. The only risk is that of extra judicial eviction which cannot be ruled out given the current environment.

Politically, as long as there is no floor crossing from Nelson Chamisa’s MDC-A to Thokozani Khupe’s MDC-T, it follows that the latter is politically doomed as she would effectively not be able to conduct the Extra Ordinary Congress she has been ordered to do.

Any such Congress that takes place without a tectonic shift in political allegiance would effectively be a repeat of the one she took place last year and not meet the test.

This would render the Order worthless or “moot” as JA Patel noted. Khupe’s “victory” is effectively a cross between the proverbial “pandora’s box” and a poisoned chalice. Her biggest weakness is the democratic deficit that she has which means that her political gait is precariously and dangerously perched on a cliff, with one leg almost dangling over the edge.

On the other hand, the Supreme Court’s decision has created the risk of a “siege mentality” in Chamisa’s camp which tends to rally the flock together and often results in radicalisation and an exponential growth in popularity.

By effectively seeking to carry out an amateurish, rushed, inorganic, ill-judged and ill-timed palace coup without the necessary overwhelming and crucial political buy-in that is needed from the MDC-A structures, Mwonzora and Komichi have effectively committed political suicide and are facing immediate political oblivion.

Chamisa can afford to sit tight and watch where the wind is blowing before making his move at the appropriate time. The constraints of the Coronavirus pandemic mean that if the Khupe offensive is bogged down or meets headwinds it will lose steam very quickly a-la “Operation Barbarossa” during the Russian winter as it has no grassroots support.

The future for Chamisa rests on setting up a totally independent political entity which draws a line under the current unedifying shenanigans and galvanises his supporters.

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