An Alternative View – Response To David Tinashe Hofisi’s Blog Titled: “MDC Alliance: Old wine in new wineskins? COALITIONS, CONGRESSES AND CONSTITUTIONS”
By Brighton Mutebuka
This alternative view is being made pursuant to the realisation that my colleague David has ostensibly proffered his opinion pursuant to providing legal clarity to pressing issues that are in the public interest following the contentious Supreme Court’s recent decision.
The political and legal stakes are clearly high, so it is pertinent that where possible, such views be subjected to rigorous scrutiny with a view towards widening the discourse that is available and presenting alternative views to the public.
It should be stated that there are no controversial or challenging issues that arise in respect of paragraphs 1 – 3 of David’s blog as there is clearly clarity and well supported reasoned discourse in these areas. The challenges start in paragraph 4.
In this paragraph it is submitted that David’s contention in the alternative that the MDC Alliance is not a political party is inaccurate and misleading. This conclusion clearly contradicts the definition that David provides under Paragraph 1. That definition is clearly wide or permissive enough to encompass the political developments that David has raised in this context.
It is also clear that David’s analysis in this paragraph is inadequate to the extent that, as is shown below, it fails to sufficiently recognise the political developments which took place in the MDC-A after its May 2019 Congress. The last sentence in this paragraph is a clear case in point.
Further challenges arise in respect of paragraph 5 in relation to David’s sweeping and authoritative statement that “There is no president of the MDC Alliance” as this betrays a superficial understanding and application of the law in this regard. We have already noted from the preceding paragraph that it contradicts the correct definition that he has highlighted in paragraph 1, which is very wide, informal and unrestrictive as it does not require a formal registration process.
Chamisa’s occupation of the MDC-A presidency is not just strictly a matter of law, its also a matter of politics. In other words, politically speaking, there is no doubt that ZEC, Parliament, voters, the Alliance Political Partners and International Actors accept and acknowledge this reality, yet David insists that this is effectively legal fiction.
David refers to the existence of a review clause, but he does not identify this as paragraph 8.2 of the MDC-A Constitution at the time, which provided for post-election review. It is clear from the last paragraph under this section that David has not associated the May 2019 Congress and subsequent developments as capable of the political reconfiguration ‘into a post-election stand-alone political party’ that he refers to in the last sentence of the first paragraph under this section.
A fundamental development David is not aware of is the existence of a replacement / successor Constitution which is under the custody of the Constitutional Review Congress Committee and governs the political architecture referred to above and gives full and unadulterated legal and political effect to the integration of Nelson Chamisa, Professor Welshman Ncube, Tendai Biti’s political entities and other minor ones.
We now move to paragraph 6. In relation to this paragraph, David’s fundamental mistake in this context is to be restrictive in the appreciation of the evidence that would, to him, be dispositive of whether or not the MDC-A is a political party. He also conflates political strategy with the evidence needed to establish legal identity before the law.
Whilst the conduct and representations that he cites which were carried out by the respective political leaders that he has identified are unhelpful to them, they must be understood within the context of the vagaries of political survival that political parties sometimes have to adapt depending on the political environment. The confused political messaging clearly has to be understood within the context of the raging political dispute over the party’s identity that was taking place in the background. This is not the first time that this has happened in our body politik.
In the period 2001 – 2005 there were secret Constitutional negotiations that took place between ZANU PF and the original, united MDC. This culminated in the so-called Kariba Draft Constitution. At the time the negotiations took place, both parties maintained the subterfuge and vehemently dismissed the story, likely because it was not politically expedient at the time for their respective constituencies to countenance such interaction.
Another example is the developments which took place during the Geneva Conference during the struggle for Zimbabwe’s independence. Both the Smith’s regime and the respective liberation armies misrepresented to the Frontline States and Britain that they had paused hostilities when in reality there was actually an escalation of hostile acts. These are the delicate balancing acts political parties have to consistently contend with. Sometimes the balance between the legal and the political unhinges / dislocates, but not necessarily irreparably.
What is glaring is that David’s assessment does not incorporate or appreciate the relevance of evidence relating to party meetings, resolutions, minutes, Affidavits from the Alliance leaders, contracts with independent third parties such as Banks, Landlords, contractors, etcetera covering the whole period.
Surely it cannot be argued that they are immaterial in his assessment particularly given the very permissive requirements we have alluded to. David has not explained why he has chosen to restrict himself evidentially in this manner. It could be that there is a limitation in his understanding of the complex and dynamic relationship between law and politics.
As has been stated above, it is true that the evidence that he has cited contradicts the proposition that the MDC-A is an independent political entity. However, that need not be the last word on the subject. It is quite a legal leap from highlighting that contradictory evidence to concluding in emphatic terms that the MDC-A does not exist as a political entity despite the fact that it has continued to, and is therefore extant on the ground, including after the departure of Jacob Ngarivhume of Transform Zimbabwe.
The above challenges also reinforce the contention that the Supreme Court’s Order is incompetent to sufficiently engage with the complex range of realities that exist on the ground. This is not to blame the Supreme Court. It is simply to indicate that the case that was before it developed in such a manner as to make the very generous interpretation David is now making legally untenable.
The simple, equitable and uncontroversial interpretation is that at some point in February 2018, two competing MDC-T factions developed. The Chamisa led one remained the largest and most recognised one by virtue of its size and retention of virtually all the party’s structures nationwide. These went on to compete in elections with two different identities which were sufficiently distinguished, MDC-T and MDC-A, notwithstanding claims to the contrary.
These were all variants of the MDC. Given the very generous requirements / definitions under the Electoral Act and the Political Parties Finance Act, the parties existed somewhat uneasily, but the political judgment from voters was emphatic and unmistakable.
If the MDC-A has continued to discharge its functions accordingly with members, debtors, creditors, its Landlord, Banks, etc, it is difficult to justify David’s very narrow and superficial conclusion that the MDC-A is no longer extant as all such parties would understand that they are transacting with a body with a separate legal personality / identity to Khupe’s MDC-T.
Our next port of call is paragraph 7. It is submitted that David’s contentions under this paragraph have been adequately addressed by what is stated above. However, over and above that, it is clear that David’s analysis in this paragraph has been partly hampered by limited access to information. This has led to him basing his analysis on presumptions.
If he had been aware that there was a post-Congress written agreement, it is likely that he would have adapted his analysis accordingly. I am afraid this is not the end of the matter, as the above deficiencies suggest that there is still a limited context for concluding that he would still have gotten it wrong.
The reference to the 5th national MDC Congress is in my view misplaced. It is a tenuous / redundant argument vis-à-vis settling the argument whether or not MDC-A was a new political party. This is because, MDC-A is a unique party in that it combines several parties that by definition rightly view themselves organically as having been at the core of the formation of the original MDC in September 1999.
In addition to this, as referred to earlier, this formed part of a crucial segment of ongoing political messaging pursuant to maintaining their umbilical cord with their members. This is why the Supreme Court’s finding is inadequate and has generated a lot of confusion and controversy.
The journey continues to paragraph 8. This has already been addressed sufficiently in the preceding paragraphs. It is clear that Khupe certainly held her own Congress and not only that, she contested in a national election and had her results pronounced by ZEC and is represented in Parliament as such. She has even been recognised as such by President E.D. Mnangagwa on the much derided POLAD platform.
David has disingenuously claimed that Dr Khupe’s congress was not under similar scrutiny because her formation was never before the Court. With respect, it is submitted that this is preposterous and unsustainable. Khupe was party to the proceedings and successfully argued before the court that she had a substantial interest in the outcome. There were also submissions made on her behalf by her Counsel and she had an Opposing Affidavit that Chamisa’s Counsel referred to.
Much more importantly, as highlighted above and even in the Judgment itself when acknowledging the political reality involved, the court had Judicial Notice of Khupe’s participation in the national election as a Presidential Candidate asserting her rights accordingly. Her Congress does not even come into it and the ambivalence of the Lawyers before court does not detract from this.
It is conceded that ordinarily speaking, Lawyers have got an obligation to assist the court. However, the court itself still retains the competency to pronounce the law as it is. In fact, it is notable that the court’s amendments of the High Court’s Order were still made without reference to the input of the Lawyers.
Finally, as argued above and previously, the court reached its decision without adequately exploring the significance of the information that was already in the public domain and despite having taken Judicial Notice of that evidence. We therefore disagree whether or not there was an adequate factual basis for the court to intervene, notwithstanding the failure of the Lawyers involved to assist the court in a more robust manner.
What David euphemistically regards as “awkward” is in actual effect an “outrage” owing to the democratic deficit involved. In fact, Dr Khupe is running the risk of allowing herself to be perceived as waging a proxy war against the MDC-A.
We move on to examine paragraph 9 of David’s blog. It is submitted that perhaps this is the weakest part of David’s contribution. I will explain why. As has been argued in the preceding paragraphs, the notorious legal and political fact is that it is simply impossible for Khupe to be the President of the MDC-A. Their Congress in May 2019 took care of that and I have already referred to the overwhelming evidence on the ground confirming that MDC-A is still extant and has structures, a written working agreement and contractual business transactions that it is carrying out in that name pursuant to the non-restrictive regime.
It appears to me that David has been led astray by his overly restrictive and technical interpretation which is contrary to his own very apt submissions in paragraph 1 of his blog. I have been unable to account for that rashness to a restrictive approach by reference to the evidence that he has cited.
It is further submitted that a fundamental failing in David’s body of work is the contempt he has seemed to attach to the importance of the absence of a democratic mandate from Dr Khupe’s claim. At this juncture, it is instructive to buttress the significance of having a democratic mandate underpinning a claim such as Dr Khupe’s.
Essentially, voters form a social contract with their leaders. There has to be consensus ad idem, a meeting of the minds, per the contractual doctrine derived from the famous case of Smith v Hughes LR 6 QB 597. It is submitted that this did not take place in Dr Khupe’s case. The legitimacy of leaders and their mandate to lead comes from the people. This follows a democratic process where people exercise their minds freely, with the contesting parties sufficiently distinguishing themselves and selling their message to the electorate.
The above process took place in July 2018 in Zimbabwe. Dr Khupe has accepted those results. During that process, she seized the opportunity to persuade not only members of the MDC-T, but the nation at large, rightly so it would be said, that Chamisa’s ascendancy had been unconstitutional and the voters should reject him on that basis. She competed directly against the MDC-A and fielded candidates against that political entity. Regrettably for Dr Khupe, her message did not gain traction and she suffered emphatic rejection from the electorate, garnering a mere 45 000, so the political verdict is clear. There is a clear, direct, democratic chain, equation and outcome there.
I have previously argued that Dr Khupe would have been shielded from the humiliation and legal scrutiny had she avoided going for a Congress and participating in the July 2018 national election, why? Because in my opinion, she would have been able to argue that she had been denied a fair opportunity to be a Presidential candidate and to campaign and present her message to the electorate.
Given the above, it has to be stated that Dr Khupe’s bid to usurp the Presidency of the MDC-A is amongst the most audacious I have ever seen in Zimbabwe’s recent political history. It is quite jarring and unheard of. The expectation is that, when a politician is humbled in such a manner, they normally quietly retreat to the margins of politics and rebuild free from controversy.
Defying political reality, Dr Khupe has actually conspired to embark on political manoeuvring to effectively reverse her stunning defeat, pretend that it did not take place and get the electoral footprints totally erased.
What’s worse, during the period under consideration, she has indulged in political acts which the MPs she seeks to hijack and the constituency she seeks to implant or foist herself on are viscerally opposed to, such as having a cosy political relationship with President E.D. Mnangagwa and being very active in POLAD. Those are clear irreconcilable differences.
Finally, in the democratic chain referred to above, it must be remembered that there are voters out there who are not members of the MDC-A but nevertheless voted for that entity and the policies that it stood for whilst rejecting Dr Khupe’s MDC-T. They would have chosen MPs on that basis via that social contract I referred to earlier.
They have got a legitimate expectation to see MPs in Parliament representing them in the name of MDC-A under Nelson Chamisa’s leadership and are not party to the remedy the Supreme Court is trying to lump on them via its Final Order. They are effectively being disenfranchised by the Supreme Court’s judgment [whether intentionally or not] and have got a right to launch a Class Action and approach the Constitutional Court seeking appropriate relief as their inalienable Constitutional rights are engaged.
I submit that David’s superficial and simplistic analysis has overlooked the very weighty Constitutional matters that I have to alluded to above.
Nearing the end, we now peel the layers to examine paragraph 10. By reference to preceding paragraphs, it is submitted that this is clearly flawed on account of having relied on the wrong premise that the MDC-A is not an extant political party and that it is leaderless at present. The weaknesses that I have highlighted above indicate the challenges of using a minimalist, technical and superficial of the law when locating the enjoyment of Constitutional rights.
Our final port of call is scrutinising David’s conclusion. I wish to make it unequivocally clear that I respectfully disagree with David’s conclusion. I do not think that there is “fiction” accompanying formal constitutional rules. Instead I am of the view that it is an ongoing challenge and progress is incremental, over time. Zimbabwe only gained independence in April 1980, and the MDC was formed in September 1999. This is clearly recent in comparison with established democracies. By and large, there has actually been some compliance with constitutions by the established parties, or at least a consistent attempt to do so.
The biggest challenges have particularly arisen in relation to electing new leadership. It is a tragic fact that in all political parties in our body politik, ZANU PF, UANC, ZANU NDONGA, ZAPU, PDP, MDC-T [Khupe], Renewal-Democrats, the leaders have either not been challenged, were removed violently, or succumbed to mortality. The inescapable conclusion is that as a country we have not yet sufficiently embraced democracy to the required levels. The aspiration and the ideals are encouraging, but we have got a long way ahead of us.
Another challenge is that fallen founding President Robert Mugabe left a legacy of conducting politics and political contests violently, and the corruption of all institutions of the State, i.e. the Police, Army, Judiciary and Intelligence for power retention purposes, with the line between the ruling party and the state deliberately blurred so as to forestall the development of truly independent and credible institutions.
Is it not incredible that even before the advent of the MDC, all elections in Zimbabwe had been to varying degrees violent and intolerant? Drawing from Frantz Fanon’s celebrated analogy, if you stare into the eyes of the devil close and long enough, there is a good chance that without realising it, you will end up resembling that devil in your conduct.
What do I mean? In order to win political power, ZANU PF was forced to adapt to Ian Smith’s ruthless tactics. The political terrain has been so fundamentally distorted by ZANU PF’s actions that some members of the opposition have been so scarred and radicalised that they will not countenance anything that stands in the way of democratic change, making it very difficult for a leader to keep a lid on the political temperature.
This does not mean that the opposition does not have a responsibility towards ensuring that they comply with their own Constitutions. Far from it, it simply means that Constitutions will have to evolve with the above in mind, as lasting change will only take place if the appreciation of and adherence to tenets of Constitutionalism are organic and grounded in the grassroots.
As long as Zimbabwe remains a repressive state in line with Robert Mugabe’s ruinous and tragic legacy, then the prospects for a peaceful, democratic and non-violent transition will remain a mirage and far removed from the theoretical exhortations David’s article is projecting.
We cannot gloss over the fact that in November 2017, ZANU PF violently removed its leader, Robert Mugabe from power via the military and violated not only its Constitution but the country’s. The whole country celebrated his long overdue departure from the seat of power and even the Judiciary duly obliged and ruled the coup legal and Constitutional. Tragically, that is where we are as a country, we are all not yet ready to embrace Constitutionalism fully.
Brighton Mutebuka is a Zimbabwean Lawyer and Solicitor based in the UK. He runs Mutebuka & Co Immigration Lawyers and is an alumni of the University of Zimbabwe and Leeds University’s School of Law. He writes in his personal capacity.