There has been more political than legal criticism of the judgement on Nelson Chamisa, and it is because no real legal criticism exists, writes lawyer David Hofisi
The High Court sitting at Harare dealt a body-blow to Nelson Chamisa’s leadership of the MDC on 8 May 2019. In the case of Elias Mashavira vs. Movement for Democratic Change (MDC) and Five Others HH 302/19, Justice Edith Mushore ruled that Chamisa’s ascension to the positions of Deputy President, Acting President and substantive President were contrary to the MDC Constitution.
Criticism of the judgment has been as swift as it has been acerbic. The MDC claimed the ruling is part of the “machinations and strategies…deployed by the Mnangagwa administration to destabilize and destroy the people’s project.” UK based scholar Alex Magaisa termed the judgement an “embarrassment to the legal and political system,” whilst MDC member and lawyer David Coltart called it a “desperate and pathetic move.”
This is at odds with other commentators, most prominently scholar Derek Matyszak, who pointed out Chamisa’s questionable rise to the party presidency ahead of the court’s findings. In assessing these opposing views, I am convinced that it is the populist-driven nature of the MDC which makes its supporters oblivious to the legal consequences of its constitutional misfeasance.
The court’s decision
The decision by the High Court is based on the concept of constitutionalism: the limitation of power by a supreme law. Article 126.96.36.199 of the MDC Constitution states that all members of the National Standing Committee, including the Deputy President(s), are elected at Congress.
Both Nelson Chamisa and Elias Mudzuri were appointed by Morgan Tsvangirai in July 2016, allegedly with the blessing of the National Council, but without being elected at Congress. In response, Morgan Komichi argued that the National Council could (and did) condone this departure, but he failed to point out the constitutional provision allowing such departure and condonation. For that reason, the appointments were found to be contrary to the MDC Constitution and it was ruled that Thokozani Khupe should have acted as President pending an extra-ordinary congress.
The High Court also struck down the elevation of Nelson Chamisa to substantive President without the constitutionally mandated extra-ordinary congress as well as all assignments and appointments he made in his capacity as President/Acting President.
Morgan Komichi said the constitution attached to the court application was not the correct version, but did not attach any other version
It is noteworthy that, at the time of the appointments of Messrs Chamisa and Mudzuri, Article 188.8.131.52 only provided for one Deputy President. This is affirmed by Article 9.2 which, to this day, refers to the duties of ‘the’ Deputy President. Justice Mushore opined that “it should be obvious that the mention of Deputy Presidents in the plural is a typographical error.”
The real reason for the inflation of deputies is probably less benign. As Matyszak explains, it was only after the Chamisa’s elevation was questioned that the MDC Constitution disappeared from the party website, later resurfacing with the letter ‘S’ added to two provisions referring to the Deputy President. This constitutional revisionism became the basis to justify Chamisa’s elevation after the fact.
The ruling of the Court is therefore based on the MDC’s failure to live up to its own constitutional dictates. Morgan Komichi contended that the constitution attached to the court application was not the correct version, but did not attach any other version.
The Court noted that he actually quoted substantially from the attached version, thereby confirming that it is the authoritative text of the MDC. Further evidence of this proposition is evinced by the critiques of the judgment, none of which take issue with the reference to constitutional provisions or how they were interpreted.
To the contrary, the critiques have been singularly framed through a political rather than legal lens, abandoning the tradition opposition space of the liberal left (calling for more judicial activism) and attacking the judges from the conservative right (demanding they stay out of political disputes).
What is the effect of the Ruling?
The ruling means Nelson Chamisa is not, at law, the legitimate President of the MDC and neither is Elias Mudzuri a legitimate Deputy President. None of Chamisa’s appointments and assignments are cognizable at law. An extra-ordinary congress must be held, but it seems it is only Khupe who can be its legitimate Acting President.
This is the confusing part of the ruling, since Khupe will likely argue that her own party already held such a congress and elected her the substantive leader.
The MDC is likely to appeal the findings, which will suspend the operative part of the judgement. They will also likely argue that their upcoming congress cures all the alleged defects. It is not apparent, given that Chamisa’s elevation and actions have been struck down, whether such congress will have that legal effect. Politically, Chamisa will likely soldier on, but his ability to claim ownership over the MDC party name and assets is now seriously in question and is certainly vulnerable to formidable legal challenge.
Criticism of the ruling
The Murimoga Case: Did the court make a ruling?
Both Magaisa and the MDC take issue with the Court’s failure to abide by the findings in the case of Patson Murimoga and Another vs Morgan Richard Tsvangirai N.O. and 4 Others HH635/17. In that case, two members of the MDC challenged the appointment of Nelson Chamisa and Elias Mudzuri to the positions of Vice Presidents (later called Deputy Presidents). Justice Hlekani Mwayera dismissed the case on a technicality, ruling that the applicants did not have the legal standing to institute the matter.
The Court did not rule on the actual matter of Chamisa and Mudzuri’s appointments. However, in Mashavira, Justice Mushore ruled that the applicant possessed sufficient legal standing since, among other reasons, Morgan Komichi acknowledged that he was a party member who even campaigned for Nelson Chamisa in the presidential elections. The MDC is arguing that since the issue of legal standing was dispositive of the Murimoga matter, the Mashavira case should have also been similarly dismissed.
This is something the Judge actually addressed; “It is elementary law that this court is not estopped from coming to its own determination in a matter involving different facts and circumstances and different parties by a court of parallel jurisdiction.”
In other words, it is a basic tenet of court hierarchy and judicial precedent that the High Court is not bound by its own rulings, but those of a superior court. The Judge could have gone even further and stated that similar facts and circumstances do not guarantee similarity in outcome (unless a superior court has so ruled). Thus, the Murimoga reference was hopelessly ineffectual for Nelson Chamisa’s cause.
Machinations of a captured judiciary?
Bereft of legal criticism, the supporters and sympathisers of the MDC have resorted to conspiracy theory. It is not about their constitution, its interpretation or any judgement with findings contrary to those by Justice Mushore. Rather, there is a hidden political hand.
Magaisa quotes from Levitsky and Ziblatt to argue that the ruling is part of a masterful use of the courts to side line the opposition as done by Ecuadorian President Rafael Correa in 2011. Coltart asks whether a Court could ever rule against ZANU PF and Mnangagwa in the way the High Court ruled against Nelson Chamisa’s MDC.
It is certainly true that Temba Mliswa and Didymus Mutasa’s Constitutional Court challenge of their expulsion from ZANU PF and parliament was unanimously dismissed. However, it bears remembering that when Tendai Biti and 20 other Members of Parliament similarly challenged the MDC for their expulsion, they were also unanimously dismissed.
There is no record of the judiciary issuing judgments to the opposition which it does not render to the ruling party. When the Constitutional Court had the opportunity for, to use Magaisa’s words, a “calculated existential assault upon the country’s leading opposition,” it actually upheld Morgan Tsvangirai’s claim as the bona fide leader of the MDC.
Similarly, in the Murimoga case, the High Court did not gleefully accept the opportunity to undermine Nelson Chamisa’s legitimacy. It actually found in his favour and ruled against the applicants. It is not apparent why a judiciary on a warpath against the opposition would rule in their favour in these high profile cases. This undercuts Magaisa’s claim of an orchestrated use of the courts to side line the opposition.
The legal genesis
It is helpful to recall previous cases relevant to this discussion. In Movement for Democratic Change vs. Thokozani Khupe and Two Others HB 111/18, Nelson Chamisa’s MDC approached the High Court to stop Khupe from using the name MDC, MDC-T or any of its derivatives. That case was dismissed since no court had ordained Chamisa’s party as the legitimate MDC.
However, Justice France Bere singled out Khupe’s insistence on constitutionalism as highly commendable. Chamisa appealed that ruling in Movement for Democratic Change vs. Thokozani Khupe and Two Others SC369/18. In that case, he agreed to have the matter sent back to the High Court to determine the issue of the legitimate MDC party. But having so agreed, Nelson Chamisa removed it from the High Court roll, with members of Khupe’s party celebrating the removal as evidence that Chamisa was aware of the weakness of his claim.
The legal question of the legitimate MDC could have been easily settled if Chamisa had pursued his case in the High Court. Instead, and possibly realising the weakness of his claim, he turned to the people to vote in the election and justify his position by popular acclamation. This explains both the party disdain for constitutionalism and their unrelenting populist critiques of the judiciary.
Populist attacks from the Right
The language of non-interference from the courts is usually associated with the conservative right as it seeks to shield its interests form the progressive agenda pursued by the liberal left. The political right prefers popularly elected representatives (populism) taking precedence over judges limiting their power by law (constitutionalism).
Thus, in spite of having been the first ones to pursue legal action to stop Khupe from using the MDC name in HB 111/18, Chamisa’s MDC now insists that the courts must not interfere in party business. Coltart has called the Mashavira judgement a pathetic interference with the due process of a party whilst the MDC has stated that selection of their party leaders can never be a judicial process.
Magaisa refers to the internal affairs of companies as a comparator for non-intervention by courts when matters can be solved by internal majorities. It is apparent that this courtroom defeat has led to a migration by the opposition to the political right, arguing for the primacy of majorities in lieu of constitutional compliance.
“..constitutionalism has never been about numbers, for we would simply subject ourselves perpetually to the majority”
For these reasons, the MDC has retorted that, “over 500 000 members…have been involved in a process of electing their leaders at lower levels, from branch to the province”. Coltart says the legitimate faction of the MDC is that which garnered 2.4 million votes in the last election.
Alex Magaisa summarises the point; “…the wheels of justice are so far behind the political realities that it leaves judges and the justice system looking utterly out of touch and the subject of ridicule…The fact of the matter is that the dispute which Justice Mushore purports to resolve had already been settled by the court of politics…Both factions of the MDC contested and the results are there for all to see. The judge wants to rewrite this political outcome under the veneer of legality.”
In that paragraph, Magaisa inadvertently presents the most concise defence of the deferential judicial method I have read in recent history. That is to say, court decisions must reflect political realities and defer to electoral victors, their constitutional impropriety notwithstanding. The court of law must necessarily follow the “court of politics.” It is about numbers, majorities and ensuring that legal remedies do not alter political outcomes.
Yet, constitutionalism has never been about numbers, for we would simply subject ourselves perpetually to the majority. Constitutionalism limits majorities so that populism does not devolve into a tyranny of the majority. It protects “discrete and insular” minorities and gives them a fair short in a system permanently structured to their disadvantage.
“Using populist arguments against constitutional dictates is not only unfortunate but dangerous…”
It is only through constitutionalism that a female candidate from a minority ethnic group had an opportunity to lead, even if temporarily, the biggest opposition party in the country. This is laughed off by Coltart because she got less than 1% of the vote in the presidential election – yet that is irrelevant. The MDC Constitution never required the most popular Deputy President of the party or the most popular member of the MDC to take over, but simply the officer elected as Deputy at Congress.
Using populist arguments against constitutional dictates is not only unfortunate but dangerous. ZANU PF, and not the MDC, has been the most consistent victor in Zimbabwean elections. Inviting the courts to refrain from altering political realities and outcomes is to not only support a deferential treatment towards ZANU PF, but also celebrate assimilation of the courts as agents of political, and not legal, realities. Nothing could be more dangerous for our already fragile democracy.
Conclusion: Constitution vs Mass appeal
It is highly likely that the reason for lack of substantial legal criticism of the Mashavira judgement is that none exists. This explains the singular focus on mass popular appeal.
It is apposite to quote Coltart fourteen years ago as he left Morgan Tsvangirai’s MDC: “I am not swayed by mere numbers; if I were I would have joined Zanu PF a long time ago.” The party which is admonishing the Courts because of their showing in the last election should be cautious in its insistence on the mantra of numbers and populism when those have already been weaponized by ZANU PF.
The current critique from the opposition strongly suggests that they are not so much averse to the Courts as they are envious of ZANU PF and wish to replace its brand of populism with their own in lieu of introducing the much needed culture of constitutionalism and respect for the rule of law.
David Hofisi is a Human Rights Lawyer, YALI Mandela Washington Fellow, ILS Law and Society Graduate Fellow, Doctoral Candidate and guitarist. Click here to read his blog.