By Brighton Mutebuka
#MDC Succession Legal Update – Lillian Timveos v Douglas Mwonzora & Ors HH 370-20 & HC 2527/20 – Divisions between Zimbabwe’s High Court laid bare as Mafusire J meets the moment!
1. Mafusire J has now followed Munangati-Manongwa J in recognising the MDCA as a political party that can sue or be sued, contradicting Chitapi J’s position on this issue.
2. Douglas Mwonzora & Thokozani Khupe’s submission about the dissolution of the old MDC or MDC-T structures by virtue of the Supreme Court judgment led by Patel was found to constitute “an obscure argument”. See para .
3. In para 60, he concludes that Timveos & Ors membership in Parliament had been “abruptly terminated on the basis of a process of dubious legality.” He found that the MDC-A “is a political party for the purposes of the Constitution and of the Electoral Act” and is recognised as such by Parliament.
4. He dismissed all the technical arguments / preliminary points that have been previously employed by Professor Lovemore Madhuku with devastating consequences in previous cases.
5. He said he was preoccupied with looking at “substance”. In para 53, he found the submission premised on the claimed absence of jurisdiction on the part of the court to entertain the matter under Section 167(1)(d) to be “a decoy designed to throw me off course.”
6. In para 44, he seems to be admonishing the Respondents for arbitrarily wielding the power of “re-calls”. He chides thus: “So-called recalls cannot be made capriciously by a political party, much less, whimsically by an individual or a faction within the party.”
7. The above point assumes greater significance in light of para 51 where he pronounces thus: “What the respondents are in effect saying is that it is too late for the applicants.
The horse has bolted: see Hlalo, supra, at p 523G. The process has started. The train has departed. It cannot be stopped. I do not agree.
The train may be in motion. But Mwonzora or Khupe and or the party they represent do not have to be in it. They may be ordered to disembark or else get ejected. Not all the horses have bolted ….”
8. In para 56, Mwonzora & Khupe were accused of being “pretentious” in trying to “feign ignorance of the colour of their rights”, i.e. the rights of those that the two are trying to recall. Its a damning assessment as it speaks to subterfuge / disingenuity.
9. The argument about MDC-A being a composite structure or coalition which saw individual identities being retained was rebuked by the Judge and found to be “a self-serving gloss,” preceded by the dreaded “with the greatest of respect” term, which the legal profession uses to serve a “shit sandwich.” See para 62.
10. In the same paragraph, the Judge is clear that in assessing the case on a prima facie basis: “Whether the MDC-A is a political party is largely a question of fact. De facto it is. All the rest of the arguments, including what effect the Supreme Court judgment has had on the MDC-A is a matter of interpretation…. The respondents have not shown in what manner the applicants ceased being members of the MDC-A, the party that sent them to Parliament on proportional representation.
11. In para 63, he recognises Chitapi J’s decision and the apparent contradiction but goes on to clarify that the issue of locus standi was not before him. In para 64, he recognises the decision of Munangati-Manongwa J who like him also concluded that MDC-A was a political party with a capacity to sue and be sued.
12. In para 65, he recognises the impact that the discordant / divergent decisions have through bringing “uncertainty in the law, causing confusion and adversely affecting the integrity of the courts….” before going on to counsel that this can be addressed through consolidation of cases similar cases to ensure that they are heard by the same Judge and via appeals to the Supreme Court where this does not suffice.
Its a long way to go in these unending squabbles in the opposition movement. Mafusire J’s decision shows a lot of courage under very difficult circumstances.
Though it is provisional in nature and thus amounts to temporary relief, it brings much needed respite to Chamisa’s followers while shattering the veneer of an unstoppable legal juggernaut on Mwonzora & Khupe & their followers.
A contentious point in question arises in respect of how Chamisa’s followers should treat the unexpectedly favourable decision in light of their stated position that they consider the Judiciary to be captured in Zimbabwe, which has understandably made them more circumspect.
It is submitted that on the face of it, there appears to be an inherent contradiction between approaching courts to seek relief & then condemning them as captured when unfavourable outcomes are received.
My take is that there is none, though the explanation is not straightforward. The reality is that Chamisa & his followers have limited options for recourse outside approaching the courts, so they likely do this as a last resort, out of desperation.
Secondly, its an exaggeration to conclude that the whole Judiciary is captured. There is no doubt that whilst the regime’s true intent is to capture the whole Judiciary, it’s unclear to what extent it has succeeded. There can be no doubting that the figure is likely to be significant.
Politically sensitive cases remain the most difficult challenge for the Judiciary. A range of factors come into play. This includes factors such as the Judge’s background, i.e. whether or not they have been previously associated with ZANU PF or the regime, such as being a War Veteran or party functionary, whether or not they have been compromised by the regime & are vulnerable, e.g. via allocation of a farm, the existence of “kompromat” such as evidence of corruption, how they were appointed & idiosyncratic factors such as bravery or capacity to withstand intimidation. The list in not exhaustive.
On its part, the regime itself is largely paranoid about the issue of loyalty from the bench. Its not convinced that it retains full support. This is the reason why we see certain politically sensitive cases being reserved before certain Judges. Its to eliminate the risk of a contrary outcome.
Negative outcomes are not just dependant on the Judiciary being captured. There are also circumstances where there have been deficiencies on a technical, evidentiary and jurisprudential basis, which is to be expected. The challenge is in dissecting each situation and adapting accordingly.
Given the overt political support the regime is now offering Khupe & Mwonzora’s factions, Chamisa & his followers have got no option but to exhaust every possible remedy that’s available, legal or political to overcome this existential challenge.
This particular decision has thrown a lifeline to Chamisa & his followers, albeit temporarily. It has preserved some form of hope in the integrity of the Judiciary.
By all accounts this Judge was alive to all the potential political shenanigans involved. Take for instance para 53 where he recognises the difficulties caused by the Covid-19 pandemic and uses this to shoot down Professor Madhuku’s disingenuous submission.