Big Saturday Read: Critical Analysis of the Supreme Court Judgment

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By Alex Magaiza

This week, the Supreme Court of Zimbabwe delivered a judgment concerning a longstanding legal wrangle over the leadership of the MDC-T. There were two substantive issues. The first major issue was whether appointments of deputy presidents made by the founding President of the MDC-T, Morgan Tsvangirai in 2016 were lawful. The second concerned the legality of Nelson Chamisa’s rise to the Acting Presidency of the MDC-T in February 2018.

The Supreme Court upheld the decision of the High Court that there were illegalities in both instances. The court determined that the MDC-T should revert to the pre-2016 appointments position, literally turning back the hands of time. It also ordered that the MDC-T should hold an Extraordinary Congress within 3 months from the date of the judgment. The decision has sparked heated debate and concern regarding its consequences for opposition politics. This article analyses the judgment and its implications.

Whose tortoise was it?

It is important to briefly set out the timeline of events to provide context for the analysis. In 2016, the then leader of the MDC-T, Morgan Tsvangirai appointed two deputy presidents, Nelson Chamisa and Elias Mudzuri. This created a triumvirate of deputy presidents. Thokozani Khupe had been elected as deputy president at Congress in 2014. The appointments were controversial. However, while Khupe and others were unhappy with the turn of events, they did not mount a legal challenge.

There was, however, an attempt to challenge the appointments at the High Court by one Patson Murimoga. This attempt failed at the preliminary stage. There was a view that Murimoga was a proverbial tortoise on a lamppost; the tortoise had not climbed to the top of the lamppost on its own. Someone had helped it, but as to who it was who had placed the tortoise on the lamppost remained a matter of speculation. It was probably senior members of the party who did not dare to challenge Tsvangirai directly. The existence of this case will become more important later in this analysis. After Murimoga’s failed attempt, it was business as usual for the party; Tsvangirai ran the party with his trio of deputies, an uncomfortable co-existence but a co-existence, nonetheless.

February revolution

Significant events have happened since those appointments in 2016. Tsvangirai, the principal author of the 2016 appointments, died in February 2018 leaving a void that needed to be filled. There had been no clear succession plan. This created a dog-eat-dog scenario. The leader’s death sparked a succession wrangle between the trio of deputies. In an audacious and dramatic turn of events, Chamisa emerged as the new leader of the party. The circumstances of Chamisa’s ascendancy were controversial. However, there was no legal challenge. It was clear that the legalities notwithstanding, Chamisa was now in effective control of the party. Unhappy with the circumstances, Khupe left with a faction of the party. She was recalled by the party from Parliament because she was no longer a member of the MDC-T. Before Tsvangirai’s death, she had long stopped attending meetings at the party headquarters and she surfaced at his funeral wake.

Insisting that she was the legitimate successor, Khupe called her faction of the party the MDC-T, the same acronym that had been used by the party. The MDC-T had effectively split into two separate parties, one led by Chamisa and another by Khupe. Meanwhile, preparations for general elections were underway. Khupe and her party held a Congress in April 2018 at which she was elected as President. The MDC-T led by Chamisa underwent significant changes as it combined with other parties to form the MDC Alliance. The parties registered as separate entities and fielded competing candidates in the elections. In the presidential elections, Chamisa pulled more than 2 million votes while Khupe managed 45,000 votes. Chamisa and the MDC-Alliance contested the results, arguing that they were rigged while Khupe and the MDC-T duly accepted the outcome. The MDC Alliance held a Congress in June 2019 in which Chamisa was elected as President.

Another tortoise on a lamppost

Meanwhile, in September 2018, one Elias Mashavira, described as a member of the MDC-T, launched legal proceedings in the High Court, challenging the legality of the appointments made by Morgan Tsvangirai in 2016 and Chamisa’s ascendancy to the leadership. This was two months after the momentous elections when Chamisa was challenging Mnangagwa’s legitimacy. The application was opposed on several grounds. The High Court issued a judgment in May 2019, holding that the 2016 appointments were illegal and everything that had happened thereafter, including Chamisa’s ascendancy to the Acting Presidency, was unlawful. The court ordered the party to revert to its structures as they existed before the 2016 appointments. The party appealed the decision on several grounds. It is this appeal which was dismissed by the Supreme Court.

So these are the facts, in a nutshell.

Legal deficiencies

Technically, it is difficult to fault the finding concerning the 2016 appointments. Questions were raised at the time of the appointments (including in this column) but the advice was not heeded. If supposing that a challenge had been successfully brought to court at the time, there is every chance that a court might have reversed the appointments. That none of the disgruntled leaders mounted a challenge against Tsvangirai speaks to their weaknesses and lack of courage concerning matters of principle. The attempt to use Murimoga as a surrogate litigant was half-hearted. They chose, instead, to plod along for two years, creating the impression that they had acquiesced and had no problem with what had happened – a type of co-existence in peaceful detachment. They knew there was illegality and they participated in it, giving the impression that it had been corrected and endorsed by the party.

There is an important lesson here: the party must always comply with its constitution. When it does not do so, opponents will take advantage. Those of us who raised caution in 2016 derive no pleasure at the turn of events. Another lesson is the problem of not challenging leaders when they are wrong. It is easy to blame Tsvangirai who is no longer around to explain or defend his decision but the leaders who stood by and failed to correct the illegality because they preferred not to rock the boat are all complicit in the illegality. Ironically, they should now want to claim the moral high ground four years after the event and two years after his death when they did nothing to correct it. It is even more hypocritical that the same people who are celebrating the finding that Tsvangirai acted illegally are, at the same time, claiming to be guardians of his legacy. They forget that if Tsvangirai were alive, it is he who would have been embarrassed by the Supreme Court decision they are celebrating.

Balancing the legal and political

Let me pause here and make an observation. The outcome of the case is a classic reminder of the clash that occurs between law and politics. Any lawyer who has worked in politics or with politicians understands the difficulty of persuading politicians when laws stand in the way of political objectives. Politicians know they must follow the law, but they also know that their stock-in-trade is to make political decisions to drive political objectives. Advisers know that politicians must follow the law but they are also sensitive to the realities of political life. Sometimes decisions just have to be made.

As it has turned out, Tsvangirai’s decision was legally incorrect, as the courts have established, but if he were around today, he would probably still be sure that he took the right political decision. If you ask his many supporters, they also still believe it was the correct political move particularly given the direction that his would-be successors have taken since his death. Chamisa is still resisting the ZANU PF regime while Khupe, whom he was politically side-lining, is firmly in partnership with ZANU PF. When Tsvangirai’s followers see this, they are convinced that he understood what was happening and may even say he had a great political vision.

Likewise, Chamisa’s ascendancy to the leadership may have been legally deficient as the courts have stated, but his multitude of supporters remain convinced that it was the right political move. His performance in the 2018 elections compared to his rival Khupe’s paltry record, his large political following and effective control of the opposition as recognised by the Supreme Court suggests to his supporters that it was a politically astute decision. In both cases, the law matters little to these followers. They are interested in the political viability of the decisions that were made.

This is not to trivialise the law. The trick lies in striking a balance and this is a very delicate exercise. Political parties are voluntary organisations comprising people. They should be able to make rules to suit their ultimate objective, which is to win political power. A rigid and pedantic approach which stands in the way of attaining that objective is no use to a political party just as a static and inflexible approach which stands in the way of a business making a profit is no use if it will lead to bankruptcy. Courts have developed a strong permissive jurisprudence in the laws of business organisations, but there is little concerning the workings of political organisations.

Exhaustion of remedies: the rules are not evenly applied

A critical look at the court’s approach to the issue of exhaustion of remedies suggests a lack of consistency in how the judiciary deals with disputes between members and their political parties. This exposes the judiciary to charges of institutional bias concerning how it deals with the opposition compared to the ruling party. In this case, one of the MDC’s arguments was that Mashavira should have exhausted all the remedies available within the party system before approaching the courts for redress. At the High Court, Justice Mushore had dismissed the argument on the basis that Chamisa was in control of the remedial organs so there was no prospect that Mashavira would get justice. The Supreme Court upheld this view, with Justice Patel stating,

“I am inclined to agree with the sentiments and findings of the court a quo rejecting the viability of the domestic grievance procedure for the situation in casu. Although the individual members of the Tribunal might well have been persons other than the respondents a quo, the factual reality on the ground was that the second and third appellants [Chamisa and Komichi] herein were effectively in charge of the party leadership and hierarchy … Given this scenario, there is little to indicate that the court a quo misdirected itself in holding that the first respondent could not and would not have found any comfort in pursuing the internal remedy theoretically availed under Article 14 of the party constitution. There was no point in invoking domestic remedies that had been both politically and practically undermined”

Given these circumstances, the Supreme Court believed that Mashavira was perfectly entitled to ignore the internal remedies in the MDC-T because there was no prospect of getting justice. If this sounds reasonable, you expect the courts to be consistent in similar matters relating to members and their political parties. However, this is not the case.

Consider the case of former ZANU PF politician, Kudakwashe Bhasikiti. In 2015, he was expelled from ZANU PF following the expulsion of Joice Mujuru. Bhasikiti challenged his expulsion at the High Court where the matter came before Justice Chinembiri Bhunu (as he then was). ZANU PF advanced a preliminary objection, arguing that Bhasikiti had not exhausted all the internal remedies within the party. The ZANU PF constitution allowed Bhasikiti to appeal the decision of the National Disciplinary Committee (NDC) to the Politburo and the Central Committee.

In return, Bhasikiti argued that appealing to the Politburo and the Central Committee would have been futile because the then party leader, President Robert Mugabe chaired both organs. Besides, members of the NDC were also part of the organs to which he was being asked to appeal. Consequently, he would not get a fair hearing. He was effectively saying in the circumstances there were no viable domestic remedies. Justice Bhunu reasoned that President Mugabe could recuse himself and permit other members of the committee to hear the case. Bhasikiti appealed to the Supreme Court. However, the Supreme Court dismissed the appeal, upholding Justice Bhunu’s decision that Bhasikiti should have exhausted internal remedies.

There is no material difference between the two scenarios. Both Bhasikiti and Mashavira were challenging decisions made by their parties. They were required to exhaust internal remedies, but both feared that they would not get a fair hearing within their parties. In effect, both believed there were no internal remedies at all. Both decided to approach the High Court for redress. Yet, Bhasikiti, who was fighting ZANU PF was told by both the High Court and Supreme Court that he should have exhausted internal remedies, even though they were compromised. On the other hand, both the High Court and the Supreme Court were happy to accept that Mashavira did not have to exhaust internal remedies in the MDC-T because, in their view, they were compromised. One doesn’t need supreme intelligence to observe that the judicial process is selective depending on which organisation is before it. It is these differences in how courts treat similar matters that give rise to doubts in the independence and impartiality of the judiciary.

Delay to act amounts to acquiescence

The Supreme Court was also asked to dismiss the Mashavira’s case on the basis that he had taken too long to challenge the appointments made by Tsvangirai. As noted in the summary of facts, the appointments were made in 2016 and the applicant brought the case two years later in September 2018. This was after several significant landmarks, including the death of the principal author of the events who was no longer available to explain his decisions. Justice Patel accepted the correctness of the general rule that “quiescence amounts to acquiescence”. In other words, when you don’t do anything to challenge illegality, you will be held as having accepted it. There are good policy reasons for this rule, including ensuring the smooth running of affairs free from challenges that come long after the event. While the Supreme Court acknowledged that quiescence amounts to acquiescence, it nevertheless refused to change the High Court decision and dismiss Mashavira’s case. Why?

The Supreme Court upheld the High Court’s finding that Mashavira had only come to realise “his right to challenge the Party leadership after he had read a legal opinion rendered by senior counsel, on the instructions of the party, when a dispute arose between the three Deputy Presidents”. According to Justice Patel, it could not, therefore “necessarily be inferred that [Mashavira] was aware of and acquiesced by his conduct to the appointment of two additional Deputy Presidents in 2016. He only became aware of the relevant constitutional legalities in 2018 and acted within a reasonable time to mount the application a quo in September 2018”.

The import of this reasoning is that the wait of two years before challenging the appointments was not unreasonable because Mashavira did not know that he had a right to challenge the decisions. There is an element of, with respect, disingenuousness concerning this reasoning. It is absurd that both the High Court and Supreme Court accepted the lame explanation that Mashavira did not know for two years that he had a right to challenge Tsvangirai’s decision. Both courts were fully aware from the record that one Patson Murimoga had tried to launch legal proceedings soon after the appointments in 2016. He had failed on a technicality but it did not require supreme intelligence for any party member, let alone an officer of the party as Mashavira was, to know that anyone had the right to take legal action back in 2016.

Even the ultimate beneficiary of the Supreme Court judgment, namely Khupe was aware of her right to take legal action but she never did so. There may have been other reasons why Mashavira did not act sooner but that he did not know until he read counsel’s advice is highly implausible. Surprisingly, a High Court judge and three judges of the Supreme Court found that claim to be believable.

It sets a poor precedent for organisations, namely that an interested party may, long after the event, take legal action to challenge legality when all along they would have complied and given implied consent to the conduct in question. The point of stopping challenges in such matters is to allow organisations or individuals to get on with their business once everyone shows that they have no problem with it. When you have shown no objection to certain conduct and you have given the impression that you are satisfied with it, you cannot wake up one day and start raising questions. The law requires you to challenge the illegality when or as soon as it happens.

Nevertheless, it also presents an opportunity. Should anyone be willing to test the seemingly permissive approach of the Supreme Court to such situations, this would be a good time to challenge the legality of actions done during the coup period in November 2017. For example, when President Mugabe was ousted from power in November 2017, the person who should have become Acting President was the then Vice President Phelekezela Mphoko. These provisions were flagrantly violated to facilitate the elevation of Mnangagwa. The High Court even issued dubious orders confirming the legality of military deployment when it was clear that Mugabe as Commander-in-Chief did not authorise them as required under the Constitution.

If someone is willing to be a Mashavira, he could approach the High Court and challenge the illegalities of that period. If the State argues that he is too late, he could argue that he was not aware until now that illegalities had happened. If the State says the matter is moot, he could argue that the matter is of great public importance. But would the courts be as permissive, let alone willing to consider arguments regarding the legality of the coup? One suspects the court would likely give such an application short shrift. But if they did so, it would expose their duplicity and double standards.

Mootness of the matter

After it analysed the legal issues, the Supreme Court inevitably came to the point whether the case was moot or academic. A case is considered moot when external events intervene in a manner that renders the dispute pointless in practice. An example is a case where a legal challenge is launched on behalf of a student who is at school and by the time the case gets to be heard in court, the student would have already graduated. Such a matter becomes hypothetical as it would have no practical effect on the former student. Nevertheless, there may be circumstances where the court still hears the matter in the interests of justice. In such cases, there would be a need to make an authoritative determination on a specific issue in the interests of justice.

Justice Patel acknowledged that regardless of the legal issues he had no choice but to deal with “the ineluctable exigencies of realpolitik” and what he called the “political realities on the ground”. Here was a court of law duly recognising the reality of the court of public opinion. So what were these “political realities”? They are that, according to the judge, there was “no doubt” that Chamisa and his team were “in de facto and effective control of the Party.” The judge made a lengthy but unsatisfactory reference to the legendary post-UDI Madzimbamuto case, which I discuss shortly below. Suffice to say its inclusion is curious because its inclusion is not supported by a robust and nuanced application, which leaves one wondering why he brought it in at all.

The curious case of Madzimbamuto

The Madzimbamuto case is well known to many students of constitutional law. It was, in essence, a challenge over the legality of the Smith government following the Unilateral Declaration of Independence in 1965. The question was whether the government which had usurped power illegally had since become legal. The highest court in Rhodesia had ruled that while it had acquired power illegally, it was now legal because it had effective control of the country. The Privy Council of the United Kingdom (colonial power) had disagreed, ruling that the Smith government was illegal. For Justice Patel to refer to Madzimbamuto, it showcased his appreciation of the fact that while Chamisa’s rise may have been marred by illegalities, he was nevertheless in effective control of the party.

Having made extensive reference to the Madzimbamuto case, it is surprising that Justice Patel stopped short of taking the logical step to cite the subsequent case of Ndhlovu and others v The Queen (Constitutional Position of Rhodesia) (1968), which firmly cemented the position that had been extensively discussed in Madzimbamuto. In that case, the highest court in Rhodesia was now required to definitively consider the constitutional position of the government of Rhodesia – whether, despite the illegal way it had taken power through the Unilateral Declaration of Independence in 1965, and the negative view of the Privy Council in the Madzimbamuto case, it was now the lawful government.

The court found that while the Smith regime had illegally usurped power, the political reality was that it was the only government in effective control of the country and that the British government had no immediate prospect of regaining control. The court accepted that the Smith regime was now the lawful government and the constitution that it had adopted in 1965 was the new constitution of the country. In other words, the Smith regime had transformed from illegal to be the legal government of the country.

As one of the judges in the Ndhlovu case stated, “I am satisfied that the present Government of Rhodesia has become the only legal Government of this country and the 1965 Constitution the only legal Constitution.” One of the main considerations in coming to this conclusion was that although the Smith regime had “illegally declared independence” in 1965 it had “continued in office and was continuing to govern … Not surprisingly, the Rhodesian people in the main continued to support the Government in Rhodesia and this Government has in consequence now attained full de jure (legal) status”.

Now, let us consider the implications if Justice Patel had followed this logical step and considered the reasoning in the Ndhlovu case. Let me summarise what the judges said in the Ndhlovu case:

i. the Smith government had usurped power illegally;

ii. the Smith government had effective control of the country;

iii. the Smith government was in power and governing;

iv. the Smith government had the support of the people (those who could vote) and therefore,

v. the Smith government had acquired legality.

Now imagine for a moment how this reasoning would have applied to the MDC case:

i. The Chamisa administration had usurped power illegally

ii. The Chamisa administration had effective control of the party

iii. The Chamisa administration was widely accepted locally, regionally and internationally as and is the official and legitimate opposition in the country

iv. The Chamisa administration had been elected at a Congress and had the support of the members; Chamisa had won more than 2 million votes in the last election and the MDC Alliance is the largest parliamentary opposition party.

The logical conclusion, if he had followed the reasoning taken in Madzimbamuto and Ndlovu put together, one imagines, would have been that the Chamisa administration had acquired legality notwithstanding the initial illegality. Why Justice Patel stopped short after initially invoking Madzimbamuto only he and his fellow judges know.

Justice Patel was clear about who had effective control of the opposition party and also noted that there was “nothing to suggest that the situation will not continue for some time or that [Chamisa] is likely to be eclipsed and supplanted as the leader of the Party in the foreseeable future”. The judge agreed that because of these circumstances, the matter had been rendered moot and academic. The importance of this finding is that it confirms a political fact that the judiciary could not ignore. The court did not go far enough in its identification of these “political realities” because if it had, it would probably have seen no need to go ahead and make the order that went against its finding of mootness.

For example, its examination of the “political realities on the ground” would have led the court to critically unpack the true character of political parties involved and that each of those parties had moved on inexorably and irreversibly in different and irreconcilable directions. To use a term more common in divorce proceedings, the parties’ relationship and the relationship of individuals in those parties had broken down irretrievably that ordering a return to the status quo in 2016 was not only foolhardy but impracticable. Instead, the court seemed to conflate various entities into “the Party” involved in the proceedings. I will deal with this issue in more detail in the next part concerning the fate of MPs, Senators and Councillors.

Horses have bolted

Strangely, having accurately established that the matter was moot and academic because of the “political realities”, the court went on to make an order which has practical implications. He did so because he reasoned that “the Party is the main opposition political entity” in Zimbabwe. This was another mischaracterisation because as I will shortly demonstrate the judge wrongly conflated the MDC Alliance and the MDC-T, believing them to be the same entity. The party that got those seats in parliament is the MDC Alliance, not the MDC-T which was a party to the proceedings.

In any event, proceeding in the belief that this party with a large parliamentary representation was the same as “the Party” in the proceedings, Justice Patel reasoned that as a potential future ruling party and founded on constitutionalism it was necessary to there should be corrective intervention to what he regarded as the “gross constitutional irregularities”. He thought this intervention was a matter of “public importance” concerning the party and the “governance of political parties generally”. Even if the judge was justified in his intervention, he erred in conflating the party in the proceedings and the party that is represented in Parliament. As has already been stated, they are not necessarily the same entities.

The confusion which is evident in the judgment is encapsulated in a metaphorical knot that the Supreme Court got itself into. “The imbroglio that the Party’s leadership has become entangled in may well be water under the bridge,” said Justice Patel. “But it is a bridge that for the sake of the Party’s stature and credibility, needs to be correctly and systematically constructed”. If it’s water under the bridge, it is not the bridge that needs construction because it already exists. What is simply required is an acceptance that the water has indeed passed while the bridge remains intact.

But another metaphor perfectly describes what the judge tried to do with his order after admitting that the matter was moot. It is that the judge was trying to shut the stable doors long after the horses had bolted. The Supreme Court handed Khupe the keys to the stable doors, but the pedigree horses have since left the stables.

What about the MPs, Senators and Councillors?

The Supreme Court stated boldly but without evidential backup, that “the Party” in the proceedings before it, namely the MDC-T, is the same party that is represented by the MPs and Senators in Parliament and Councillors in local authorities. This was a premature and misleading conclusion. These are elected representatives of the MDC Alliance, arguably a different organisation from “the Party” in the proceedings. Everything about the election in 2018, the records in Parliament, representations in the media, public statements by key players and public knowledge points to the fact that the MPs and Senators represent the MDC Alliance led by Chamisa. The MDC-T led by Khupe has only a couple of representatives – both products of proportional representation, chosen according to a separate party list.

When MPs contest in elections, by law they represent a political party. It is only that political party that can recall them from Parliament in terms of section 129 of the Constitution. As things stand, following the 2018 elections, all MPs, Senators and Councillors are representatives of the MDC Alliance. As the then Secretary-General of the MDC-T, Douglas Mwonzora, stated emphatically in an interview with the press before the 2018 elections,

“The MDC Alliance is treated as a political party. It’s a political formation. It’s a political entity which is capable of contesting elections. We did that in order to go around the legal hurdle of whether we were a political party or not. So officially, yes, we are a political party. We are contesting as a political party called the MDC Alliance”.

Nothing could be clearer as to the factual and legal status of the MDC Alliance. Both parties are registered at ZEC as two separate entities. Both had candidates in the presidential election, Chamisa got over 2 million votes and Khupe got 45,000 votes. Khupe and her party joined the POLAD process while Chamisa and the MDC Alliance refused to be part of it. The parties have opposed ideas, approaches and philosophies. One is keen to engage the government while the other is not. Internationally, Chamisa is recognised as the main opposition leader and the MDC Alliance as the main opposition party.

All these are important facts that make the situation more complex and more nuanced than the sweeping generalisation made by the Supreme Court, drawing its conclusions without evidential input from the parties. The Supreme Court has neither the right nor the power to allot parliamentary representatives from the MDC Alliance to give them to “the Party” in the proceedings before it. Mashavira had the option to include the MDC Alliance as a party in his proceedings after all his legal challenge came long after the elections when the existence of the MDC Alliance was common cause. He did not do that.

As already stated, the court’s error was to generalise and conflate the MDC Alliance with the MDC-T, regarding them as the same entity when they are not. Indeed, any claims to the contrary would point to a dispute which would need to be resolved based on evidence from parties involved. It was wrong, however, for the Supreme Court to conclude in the absence of such evidence. The key thing is if the court had engaged these facts in its assessment of realities on the ground, it would have appreciated the futility of ordering a return to the pre-2016 appointments position as events have changed significantly and irreversibly on the political scene. The court could have asked itself: what order is in the interests of the party: to return to the pre-2016 position or to accept that while illegalities happened, the parties have moved on and cured them in the process.

What now after this?

It’s easy enough to say that the political actors involved should have done things differently. Perhaps they should. But what is also true is that the course of history and the fate of the party might have turned out very differently had things happened otherwise. History is easy to judge what happened because that is known. It is harder to judge what could have happened because that scenario has innumerable unknowns. What is known is that the legal deficiencies notwithstanding, and regardless of the controversial outcome of the 2018 elections, the party that Tsvangirai left performed beyond expectations and is still a great force to reckon with.

If this were a matrimonial case, what just happened would be tantamount to a court trying to fix a relationship that is beyond repair. As the Supreme Court itself noted, it is water under the bridge. While nothing can be ruled out in politics in the long term, it is hard to see how the different political characters involved in this saga can ever work together shortly. The next stage of this fight is in three parts.

The first relates to assets – past, present and future. As in any divorce proceedings and there will inevitably be a divorce here, there will be a battle over assets. The current judgment does not deal with assets but there may be legal battles over that issue. There is a related issue which is often forgotten in the scramble over assets. It is the issue of liabilities. The MDC-T has been beset by several debts and has had some of its assets seized to pay workers. As they scramble over assets, someone is going to take responsibility for the debts. The likelihood that those who had exercised forbearance towards the party may come out in droves to assert their financial claims. The scene could resemble a scramble that happens not during a divorce but upon the departure of a well-known man whom everybody believed had great wealth. Many could be in for a surprise.

The second concerns elected representatives in Parliament and councils, but as already pointed out, these being to a different entity, the MDC Alliance. Indeed, the MDC Alliance may decide to (but need not be in a hurry) to recall those who have ceased to or may cease to belong to it.

The third and the most important is the battle for the hearts and minds of supporters, in the court of public opinion. However powerful it might be, no court of law can command the hearts and minds of the people.

The supreme court of public opinion

The supreme court of politics is the court of public opinion. It comprises the people; ordinary men and women, not men and women in judicial wigs. Ultimately, this is a political battle between Chamisa and Khupe, one that began long before Tsvangirai’s departure. The court has upheld Khupe’s legal rights concerning the MDC-T but Chamisa has legal and political control of the MDC Alliance. But it is also a battle between following an opposition that truly opposes ZANU PF and an opposition that is now seeking accommodation with ZANU PF. It is a battle between resistance and appeasement. As the Supreme Court itself admitted, this position of Chamisa as the pre-eminent opposition leader is unlikely to change anytime soon. The court understood that while it had the power to make an order concerning the law, it has no control over people’s political choices. And it is in the court of political choice where political battles are won and lost.

Politicians stand or fall on the political decisions they make. Both Tsvangirai and Chamisa made momentous political decisions in 2016 and 2018, which the courts have now said were improper and unlawful. But politically, the resounding endorsement of both men by their supporters suggested that they approved. The law recognises that there are always possibilities of irregularities in the conduct of organisational affairs. But where such irregularities can be solved by majorities, the courts will generally steer clear knowing too well that whatever orders they make will ultimately be futile in the face of organisational majorities.

How the MDC Alliance proceeds from here is all in the hands of the members, not the courts of law. If they want Chamisa to still lead them, no court can stop them from doing so. If they do not want Khupe to lead them, no court can command them to like her. The members must, however, accept that there may be a few hiccups as the party navigates this murky terrain but ultimately, they and they alone hold the power to confer authority upon a leader of their choice.

History is replete with comrades who have left the major cause in a huff, but eventually, in the loneliness of the political wilderness, sanity prevails to those who are receptive to it. Those who believe in the cause and appreciate that errors do happen along the way must close ranks, commit that it never happens again and move forward in pursuit of the political objective because, in the end, that is all that matters. It is always the bigger picture that matters. If one focuses on the individual trees, there is a danger that they will miss the forest.


This article was first published on Alex Magaisa’s blog: