By Advocate Thabani Mpofu
1 Various dishonest, insincere not to mention incompetent opinions have been bandied about in the aftermath of the Supreme Court judgment handed down during the lockdown. The matter has been approached with more haste than wisdom.
It is important that I deal, in part, with the anti Chamisa drivel, packaged as legal opinions, to which the public has been exposed. I will for purposes of this piece take those opinions at their highest and will show why they cannot possibly be correct. In many other respects, I will keep my powder dry for bigger game.
The position put forward
2 It has been suggested that the judgment of the Supreme Court affects President Chamisa’s position as leader of the MDC-Alliance in that it affects what are said to be processes of the MDC-T. This is utter rubbish!!
3 Let me enlist the aid of an example showing how ridiculous the proposition is.
4 Suppose Mr Zorewa is employed by Fisheries (Private) Limited. Let us suppose further that a dispute erupts between him and his employer; his rejected position being that he is entitled to a promotion. Let us also suppose that the dispute spills into courts; the matter is argued and judgment reserved. Let us finally suppose that during the intervening period Mr Zorewa dies, though the judgment comes out a few weeks after his death and is in his favour. The judgment says Mr Zorewa “is” entitled to his promotion and given that the court is not dealing with the intervening circumstances of his death, simply orders that Fisheries (Private) Limited must elevate Zorewa, prepare fresh office space for him consistent with the new car he will drive and change his pay grade.
5 That judgment will not be worth the paper it is written on not because the authority of the court is being disdained but because the court speaks to an impossibility. It speaks to the past as though it spoke to the present. The proverbial horse has bolted. The company no longer has anyone to promote even with all the will in the world. Neither can the company promote Mr Zorewa’s wife in his stead. There is no longer a concrete controversy to be arrested by the judgment in its operation. There is nothing on which it can take effect.
The Congress processes
6 Now when the High Court ordered the holding of an Extra-Ordinary Congress, the quintennial MDC congress had already become due. The judgment of the High Court was appealed, its effect suspended and Congress resultantly held. As it was entitled to do, the MDC passed certain resolutions by which it:
6.1 Formally adopted the position that Khupe and company had left the party in the first instance by reason of their dismissal therefrom, which dismissal has still not been challenged and also by reason of them having formed a rival political outfit.
6.2 Whilst noting the judgment of the High Court which was on appeal, ratified all decisions taken by Dr Morgan Tsvangirai in the appointment of additional Vice Presidents. At law, Congress could ratify even an unlawful decision.
6.3 Ratified the election of President Chamisa, by the highest decision making organ outside parliament as well as ratifying the decisions made by him as the leader of the party. I must state in this regard that the processes by which President Chamisa was elected leader of the party were not chaired by him but by the National Chairman, Komichi. President Chamisa was validly elected by the highest decision making organ outside congress and the finding to the contrary in the judgment of the High Court was queried by the Supreme Court and necessarily vacated.
6.4 Ratified the process by which Congress was convened. This was done for good measure. It is important to point out that Congress was not convened by President Chamisa.
6.5 Dispensed with the need for an Extra-Ordinary Congress having noted that its demands and more, had been satisfied by the Gweru Congress. In addition, its demands had been satisfied by time, the quintennial congress having already become due.
6.6 The point must be made that voluntary associations are subject to the rule of the majority. The majority has the power to even condone a breach of the constitution or to ratify any action taken outside the law. It does not matter when this power is exercised by the majority so long as such majority is gathered at a properly convened congress. What is key is that in this case, the power was exercised by unanimous assent. President Chamisa was elected and the legitimacy question properly buried.
7 All the decisions set out in paragraph 6 above were lawfully made and have not been challenged before any court of law. To the extent that a political party has the right to pass such resolutions, no court under heaven can set these resolutions aside. The bottom line is that these resolutions are effectual and must guide the party.
8 Further to those resolutions, elections were conducted and all party positions filled. There is therefore nothing like 2014 structures. Those could have existed on the “un-updated” papers before the Supreme Court but had ceased to exist in reality post the Gweru Congress. No structures can in terms of the law subsist for more than five years and not even the Supreme Court has the power to change that reality, much the same way it cannot turn a man into a woman.
8.1 There can now no longer be talk of Khupe. Khupe had her dismissal from the party formally noted, not least because she had been dismissed by the relevant party organ but because she had gone on to hold her own substantive Congress, having contested the 2018 elections as leader of her own party. The idea that she can now pretend to be the leader of a rival political party, and claim by that circumstance entitlement to MPs voted under President Chamisa is preposterous and those who support it have no shame and are guilty of an injustice towards men.
The effect in law
9 So back to our example, when the Supreme Court issued its judgment, it was not called upon to deal with the Gweru Congress because that issue was not before it. In fact it could not by law deal with the Gweru Congress and even if it had done so, its judgment would be invalid. So when the court “promoted Mr Zorewa” as it could do on the papers before it, it pronounced on an academic issue and its judgment cannot be given effect to. This does not disdain the court no less than telling it that Mr Zorewa has since died and cannot be promoted does not amount to contempt. Indeed no one should disdain the court because there is no need to. Congress constitutes the antidote to all this unlearned nonsense.
9.1 Mr Zorewa’s family has however, camped at the premises of Fisheries (Private) Limited and is clamouring for the promotion of Mr Zorewa. The family claims to be following the rule of law. Even those who gave graveside speeches at the funeral of Mr Zorewa are making noise. They want the company to show them Mr Zorewa’s office and they also claim that work must be provided him in accordance with the judgment of the court. If you have understood the stupidity of this that means you now understand the doctrine of mootness as applied post a court judgment.
The illegal recall
10 Purporting to give effect to the Supreme Court judgment by recalling MDC-Alliance MPs from Parliament is unlawful for many reasons. I give a few:
10.1 Douglas Mwonzora is no longer the Secretary General of the political party whether it be called MDC or MDC-Alliance.
10.2 The Alliance is a political party for purposes of the Electoral Act, was recognised as such by ZEC and contested the elections in its name and right. That counts for something. Various judgments of the court accept that including the 137 paged judgment in the Presidential Petition. You would need to temporarily suspend honour and reality before you can take a position to the contrary.
10.3 Contrary to popular belief based on hysteria, the Alliance does not need a written constitution constituting it as a universitas personarum at law. A universitas personarum is created by contract. Such contract can be reflected in a constitution but does not have to be. It could be orally established. In certain instances, the contract may even be established by conduct. Surely that there is a political party known as the MDC-Alliance is known even by my dog.
10.4 The relationship between the MDC and MDC-Alliance has been completely if not dishonestly misunderstood.
10.5 The Speaker of Parliament does not at law know anything other than the Political parties represented in Parliament. He is not required to know how they came into existence much the same way he cannot take notice of the relationship between ZANU PF and organizations that support and have established synergies with it. He only knows that there is an MDC-Alliance which has members directly elected and yet others elected by proportional representation through a party list system. The party list system was utilised on an MDC-Alliance list. He cannot be blind to that reality “only for five minutes” during a national lockdown. Neither can he properly forget that there is a political party in his house called the MDC-T.
11 For my present purposes, I wish to make it abundantly clear that this is the position in law. In law, the processes of the MDC cannot and have not been affected by anything. To the contrary, they have been insulated by the Gweru Congress whose resolutions have legal effect. The Supreme Court judgment came late in the day and has no effect for the reasons I have given. As regards Parliamentary business, the Speaker can only deal with the MDC-Alliance in matters that affect MDC-Alliance members. THIS IS THE LAW!!!!.
DATED AT HARARE THIS 7TH DAY OF MAY 2020
Advocate Thabani Mpofu