By Langton Marange
By now most Zimbabweans have read the nonsense that came out of the Supreme Court in what some dubbed the “Corona Judgment”, which is basically an attempt by the ruling ZANU PF using the courts to destroy the opposition MDC following the death of its founding President Morgan Tsvangirai and the ascendancy of Nelson Chamisa against the regime’s preferred leadership.
This paper argues that the ruling was political and not legal but the court was used to bestow some semblance of legitimacy to a judgement that largely reflects the political stratagems of ZANU PF using MDC insiders.
Speaking for myself, I do not see how a judgment of a court of law can order a 32 year old mother of 4 to go back to being a 12 year old virgin.
Let’s begin with the High Court judgment handed sometime in April or May 2019. That judgment was handed down a few days before the MDC Gweru Congress in May 2019.
It was meant to stop congress from proceeding. A day before Congress, an urgent chamber application was in fact filed to interdict congress. Zimbabweans and the world will all recall that was when the appeal was filed which had the effect of suspending the High Court order. On that basis, the application to interdict congress was successfully resisted.
I must at this stage remark that the application to interdict congress was set down before Justice Edith Mushore. Justice Mushore is the one who had dealt with the Mashavira matter now popularly known as the Gokwe man.
The tortoise on the lamppost that filed the application for an interdict was not Mashavira. It was some different tortoise but its ownership is unquestionable and has since revealed itself. The new application still found its way before Mushore nonetheless. The odds of that happening???
Some few weeks after Congress, the Supreme Court appeal record was said to have been ready. Amazing speed. Your own appeal record from three years ago is still not ready. Hang on, you will understand why there was need for such speed and why the whole system had been sufficiently oiled.
Come October 2019, the Supreme Court matter had already been set down for a hearing. The public know a few of these things because they were said in court but let me set them out for what they may be worth:
1 Up to the day of the hearing, the appellants had not yet filed their heads of argument. In terms of procedure, appellants must file their heads of argument first and then have the matter set down. So who set this matter down before appellants had filed their heads of argument?
2 The matter was set down before Justices Garwe, Guvava and Patel. Garwe and Guvava had been part of the bench that had heard this same dispute just before the 2018 elections. Like Mushore, they had been recycled. There is however, something more intriguing.
In the earlier matter they had found that there were now two MDC formations and had ordered the High Court to decide which formation was the legitimate one. They had no option but to so find given that Hon Thokozani Khupe had had her congress.
The High Court has still not heard that matter. That however, is beside the point, how did the same judges, less than a year later, find, contrary to their own judgment, that there was in fact only one MDC and that Khupe was its leader?
3 The appellants, decided to withdraw the appeal against Khupe, Mwonzora and Mudzuri. This was a straightforward issue. The three had not participated in the High Court hearing and an appellant has the right to decide who to withdraw a matter against.
This was however, a naughty but strategic move. The court allowed the appeal to be withdrawn against Mwonzora and Mudzuri but kept Khupe in the game. You now know that the court kept Khupe in the game because it wanted to order her to convene the congress in the bigger ZANU PF strategy.
4 The appellants’ lawyers indicated that they needed time to prepare heads of argument. No such indulgence was extended and they were ordered to prepare them overnight. The court was not bothered by the fact that the lead lawyer, Advocate Mpofu, had indicated that he was travelling to South Africa the very next morning. He had to spend the whole night awake judging by the fact that he prepared some 20 pages of argument over night. Why was the court in such a hurry?
5 There’s some interesting exchange that took place between Mpofu and Patel. Patel sought to find from him the time of his flight to which Mpofu indicated it was at 07:00 hrs. Faced with that response Patel quipped, “So it means we can’t even hear the matter say at 05:00hrs”. The remark drew raucous laughter but should it have?
6 Despite the fact that Mpofu had indicated that he would not be available the following day, the matter was nonetheless postponed to that day. That was a Friday. Advocate Hashiti appeared and moved for the matter to be postponed. The court postponed it to Wednesday despite Hashiti indicating that there was a chance Mpofu would not be available on that preferred date.
7 There is something interesting about the fact that the matter was postponed to Wednesday. The Supreme Court does not sit on Wednesdays. This court however, sat on Wednesday.
I will now take you to the Wednesday being the day on which the matter was eventually heard. You will recall this:
1 There was heavy army and police presence around the Supreme Court. Why should there be heavy police presence when a court is hearing an MDC dispute or any dispute for that matter? Who had asked for security? Why must it look like the court and the state are in tune?
2 Without anyone making a request, the ZBC was brought in to live broadcast the matter. Poor strategy, they thought the lawyers would stumble. They never learn their lessons.
3 During the proceedings, Justice Garwe muttered something about there being a need for the matter to be dealt with before the end of October 2019 as Tsvangirai’s term was supposed to expire on the 29th of October 2019. This is all captured on video.
We were all stunned. Where did Garwe get this idea given that this was not on the papers? Finally the knot had been fully untied. The haste had just been explained by that unguarded remark. The court must explain where it took this information from. Judicial authority derives from the people.
4 It then turned out that the purpose of having the police and army on the streets was to try and contain Chamisa’s supporters. The idea was to dismiss the appeal on that very day. But these guys never learn. The lawyers put up a show. To the contrary, Mashavira’s lawyer made a complete fool of himself. The court had no option but to delay the handing down of judgment. The heavy security presence became a huge waste of resources.
So let’s go to the final stage, the handing down of judgment.
So the authorities decided that judgment was to be handed down during the lockdown. A few interesting things require your observation:
1 The decision to hand down the judgment during the lockdown meant the court had to sit against its own directive by which it had closed courts down except for urgent matters. Why would a court defy itself like that? The gods destroy no man unless they first make him mad.
2 That decision was made by both the court and the state judging by the heavy presence of army personnel in police uniforms and the manner they barricaded Harvest House. The lack of finesse is breath-taking.
3 The court decided to hand down two judgments. The first was in a matter argued by both Mpofu and Biti representing Majome and Gonese (this had MDC Alliance written all over). The significance of the judgment is that it constitutes a pyrrhic victory meant to give the silly impression that tables were even. It was meant to communicate the message that the court is not impervious to good arguments put forward by the MDC Alliance. It was a ridiculous stratagem which gave the court away. Why was there need for that judgment to be handed down during the lockdown? What was urgent about it? Why make the ignoble attempt to even out things?
4 And along came uncle Komichi with his prepared and printed speech. You would have to be a mug to fail to appreciate the significance of this. Hope he has now paid for services rendered.
5 Komichi’s prepared speech and Khupe’s celebratory tweet earlier in the day cannot be separated. They go hand in glove with Mwonzora’s infatuation with the Supreme Court judgment.
What we all see here, and we can’t be that blind, is the active co-operation between the court, the state, Khupe, Mwonzora and Komichi.
Finally, I ask and answer a pertinent question. Was going to court necessary? I say it was for the following reasons:
1 The appellants did not in fact go to court. They were taken to court, that is, before the High Court. They were told by that court that they had lost, that the people’s president was in fact not president and by extension that he had no business querying Mnangagwa’s legitimacy. That faulty finding had to be contested. It had to be contested then and must still be contested now.
2 Taking the matter on appeal was also important for strategic reasons. I think I have been able to read between the lines.
3 Finally, it was important that the real opposition shows the whole world why it will not go to court again. A time comes when a line must be drawn in the sand. Any rejection by the opposition of a court can no longer be viewed as anarchic and infantile. It is the blind belief in the objectivity of the courts that must be questioned.