By Professor Ken Mufuka
In the debate over the just released constitutional court decision concerning the dispute between Sister Thokozani Khupe and the MDC-Alliance, the question that must be answered has not be posited in the MDC-Alliance portfolio.
My learned brother, Alex Magaisa, has traced the problem to 2016. In appointing two additional deputies (in addition to Thokozani Khupe) MDC leader, Morgan Tsvangirai sought unsuccessfully to marry the law and what he deemed necessary for the good of the party.
Law professor Richard Christie told us as students that when such an issue arises, the leader must execute a legal fiction, whereby he performs all the legal requirements, while in fact undermining the spirit of the law.
My friend Fabian Mabaya has a gift of simplifying difficult issues. A man who seeks as second wife is required by custom to consult his first wife (kuti sadza riwande).
The legal fiction is not whether she approved (very unlikely) but that the procedures were followed in good faith (again unlikely that there was good faith).
My information is that Tsvangirai ran roughshod over the hierarchy. I was home at the time, and the explanation which was whispered in hushed tones was that Mr. T. was doubtful of Khupe’s ability to steer the ship through the storms when (he, Mr. T.) goes to meet his maker.
Be that as it may, there is no bitter woman as one scorned. Further Mr. T.’s appointments were ultra vires. Do not blame ZANU-PF for that self-inflicted wound.
But there is more which my learned brothers have only skirted. If, there is a chance that aspiring Secretary General Douglas Mwonzora was at least by December 2018, according to Brother Hopewell Chi’gono, allegedly in secret consultations with Robert Mugabe, then you have a perfect Judas Iscariot problem.
I have not yet posed the question which the MDC-Alliance must answer.
If as seems now clear, the court challenge on the part of Khupe and her supporters was generated (and possibly financially supported) by ZANU-PF surrogates, one wonders how deep the rot inside the MDC-Alliance is.
If former party chairperson Morgen Komichi, as a leaked email letter supposes, was in consultations with the judiciary before the public court pronouncement was made, one wonders how many judases are lurking inside the MDC-Alliance itself?
Issues not settled
It is true that the MDC-T has moved on and morphed into a new creature called the MDC-Alliance since February 2018. I know it and our readers know it.
That may turn out to be a chimera in the eyes of ZANU-PF and their legal enforcers’, the constitutional court.
Anybody who has been through a divorce will appreciate the fact that every letter that is written by the estranged wife, demanding the enforcement of the separation articles is followed by this sentence. “Failure to comply with this demand constitutes contempt of court.”
Khupe can demand an inventory of all properties, telephones, desks, offices and monies which were once in the name of the MDC-T.
When I was researching for my book on Robert Mugabe, I asked my surrogate to ask Mugabe questions about his successor.
Mugabe ruled out the present leader, saying that he was “heartless and ruthless.” I discounted that information, believing that it was self-serving on the part of Mugabe.
I see only dark clouds gathering. Already Khupe wants an account of the $7 million from government sent to the MDC in preparations for elections.
We know that the MDC-Alliance is a federation of seven parties. Ask yourself if she cannot recall those MP’s who fall under the largest section, the MDC-T.
Remember she already has enforcers ready for the kill.
A second lesson I learned during my research was that Mugabe prosecuted MDC hierarchy for treason, a crime which calls for the death penalty.
In Washington, DC, top lawyers charge U$1 500 per hour. Assuming that for treason, one needs top lawyers, the party will be ruined financially.
The aim, for Mugabe, whose prosecutors were paid by government, was never to win a case, but to drain MDC coffers, create endless acrimony and divert attention from his misrule.
The aim is to drag the matter, raise all sorts of issues, imply malfeasance galore, never be satisfied with answers and then return to court.
While we were going to press, a Youtube video by Obert Gutu of the Khupe wing of the MDC, confirmed that their aim was (and is) to prevent Nelson Chamisa from power.
My learned legal brothers missed the point that in the eyes of the enforcers, the 45 000 Khupe supporters are the MDC-T and not the 2.3 million who voted for Chamisa.
Now you will say: “Ken, please be reasonable? All MDC parliamentarians fall under MDC-Alliance banner. The old MDC has ceased to exist.”
My brothers, how many times have I told you that Robert Mugabe state of anomie? When white farmers approached the Supreme Court for relief, Chief Justice Godfrey Chidyausiku wended in the middle of the night (no pun on his name) his way to consult Mugabe.
Chidyausiku boasted about it.
I return to Mwonzora. If Mwonzora was in cahoots (we must say allegedly), all the secrets of the party and expenditures are deeply compromised.
Magaisa points out the hypocrisy of the people who are celebrating the court’s decision also say that they are guardians of Mr. T’s legacy. There is even a more glaring example in ZANU-PF.
While the ZANU-PF stalwarts overthrew the tyrant Robert Mugabe for misbehavior, they also say that they are guardians of “Restore (Mugabe’s) legacy.”
Were I to count the number of hypocrites in Zimbabwe’s political life, I would not see the end of it.
The fact that Khupe polled 45 000 voters as compared to 2.3 million for MDC-Alliance Nelson Chamisa is irrelevant to the matters at hand.
The point is to build her up, pretend that she is Mother Maria walking in Jerusalem. The whole MDC-Alliance will be dragged into an all-out war over trivialities until the elections.
If Chamisa loses the election, the name of Khupe will disappear from the face of all Zimpapers as if by magic.
Conclusion and mortal question
With this evidence in plain sight, first, that MDC members at a very high level were complicit with the authorities in pursuing a legal case against their own party, it is established that the authorities have an interest in the outcome of the case.
Learned brothers have eloquently articulated that under the law, Khupe cannot call her minions into general conference within the 90 days stipulated by the Court.
I was ready to say: “Brother Magaisa, thy much learning doth make thee mad.”
Have you not heard these words?
“We demand respect.
We are everything.
We are the police.
We are the courts.
We are the army.
Nobody can do anything without our permission.”
Khupe has the sympathy of “We are everything “and can do no wrong in the eyes of the law.
This brings us nearer the question. Under these conditions, does the MDC-A continue to play the game till 2023, knowing that Khupe and Gutu have been smuggled into the ZANU-PF and that the referee has been chosen by “We are everything.”
That is a mortal question.
If the answer is negative, as I have referred to earlier, the MDC-Alliance is playing in a state of anomie (lawless state).
Common sense points in the direction that continued participation in the polity that does not provide an impartial judiciary is suicidal to the MDC-Alliance.
But prudence dictates that long established systems cannot be changed without great suffering to the populace, because they monopolize instruments of violence.
I give my brothers little comfort, but only to say that Nelson Mandela faced that dilemma in 1960. The American founding fathers faced a similar dilemma in 1761.
It is called a fork in the road. If you choose to play, you lose. If you choose not to play, like Nelson Mandela, jail will be your home until the government is overwhelmed by internal fissures and you are called once more to the battle front.
The MDC-Alliance has two weapons on their side. The economy cannot be mended without a general settlement. Secondly the international community will not accept the incarceration of opposition members.
This is my prophecy.
(This article is adopted from The Zimbabwe Standard 04/12/2020.)