THE death of Morgan Tsvangirai, the iconic leader of the Movement for Democratic Change for nearly two decades has shaken its foundations to the core and if it’s not properly handled, it could easily collapse after the next election especially if it performs poorly in the next elections. Although Tsvangirai was ill for some time and while it had become evident that he was no longer in a position to continue, the party was in denial and therefore severely under-prepared for his demise. In his final days, when death was imminent, the party found itself flailing, as potential successors fought publicly to position themselves favourably to succeed him. Without the man who held the different parts together, the party faces a serious crisis of survival.
Guest column with Alex Magaisa
The intense power struggles have been an unedifying spectacle. With the eyes of the nation, and indeed many around the world focusing on the hero’s funeral and celebrating his legacy, party leaders saw it as an opportunity to advance their political fortunes. They saw gaps in the tragedy of Tsvangirai’s passing. There were scenes of a violent nature as hordes of youths accosted some of the leaders, threatening to beat them up and burn them alive in a hut — all this at the leader’s funeral.
For years, everyone, including political actors within the MDC, had focussed on the succession battles in Zanu PF and many feared what would happen if former leader Robert Mugabe died in office. No-one had anticipated what would happen should the hand of death visit the MDC. As it happened, Zanu PF had resolved its succession battle, albeit by means of force, effectively pushing Mugabe out of power last November. This forestalled the likely chaos that was predicted if Mugabe had suddenly died in office. By contrast, the MDC never prepared for the day after Tsvangirai, even though everyone was aware of the leader’s illness. Fearing backlash if they tried to talk succession, everyone pretended to put their ambitions on hold while waiting, like vultures, for Tsvangirai to die. Others manoeuvred into strong positions as soon as it became clear that the leader had reached a point of no return.
Pains of transition
What is happening within the MDC is a reflection of the pains of transition. It was never going to be easy to transit from the reign of its founding leader Tsvangirai to a new era under his successor. The pain of transition is characterised by both law and politics, with a collision between principle and expediency and between popular will and legality. The party was reckless however not to attend to its constitution, which is farcical.
The current situation would have been an easier affair if the party had a clear constitution. However, the current constitution is incomplete, vague and elusive. Any constitution of a half-decent organisation would have succession clauses, namely, provisions that deal with what happens when a leader dies or resigns. The MDC constitution has such a clause, but it does not reflect the organisational realities of the party, making it redundant.
According to Article 9.21.1 of the party constitution, where the president dies or resigns, the deputy president assumes the role of acting president, pending the holding of an extraordinary congress which must be held within a year of the death or resignation. This would be a simple affair if the party had a single deputy president. However, at the time of Tsvangirai’s death, the party had three deputy presidents: Thokozani Khupe, Nelson Chamisa and Elias Mudzuri. Khupe was elected at the 2014 congress while the other two were appointed in 2016. Who among the three deputies was supposed to take over as acting president pending an extraordinary congress to choose a new president? Each of the three has, for different reasons, been laying a claim to be the acting president. Khupe says she is the elected deputy president. Chamisa says he was appointed by the national council after Tsvangirai’s death. Mudzuri claims he was the acting president at the time of Tsvangirai’s death.
Khupe’s claim can only be sustained if it is held that the appointments of Chamisa and Mudzuri in 2016 were declared to be constitutionally invalid. This would leave her as the only deputy. The argument is not without merit since there is no evidence that the amendments of the constitution to accommodate two more deputies was approved by congress as required by Article 17 of the constitution. It leaves the legality of the national council decision to approve the appointments in serious doubt. However, this challenge over the legality of the VP appointments would be hard to sustain when it seems, to all intents and purposes, to have been accepted directly and indirectly, for the better part of two years. A legal challenge brought by a member did not go far and was not pursued. Indeed, everyone accepts that they are deputies.
If the appointments are held to be valid, then the party has three deputies and the question remains as to who among those three took over constitutionally when the president died. The fact of the matter is that there is no specific constitutional provision that directly addresses that particular situation since Article 9.21.1 deals with a situation where there is only one deputy president. It constitutes a lacuna in the MDC constitution. To understand the gap, consider how the situation is dealt with under the national constitution. The national constitution provides that the deputy who last acted when the president was absent becomes acting president if the president dies or resigns. If this clause was part of the MDC constitution, the question would be decided by identifying who was the last acting president before Tsvangirai died. In that case, it would be necessary to settle the dispute between Chamisa and Mudzuri. However, there is no such clause and it does not apply.
How then is the question to be decided? Does this mean there was a constitutional vacuum when Tsvangirai died? One way to resolve it would be to improvise by considering how the acting presidency was allocated before Tsvangirai’s death. The situation was regulated by Article 9.2.1(b) of the party constitution, which provides that it is the duty of the deputy president to act on behalf of the president whenever the president is absent from Zimbabwe or is for any reason unable to perform his or her powers, functions or administrative duties. This clause was not changed despite the fact that the party now had three, rather than one deputy president. Instead, Tsvangirai appointed an acting president from among his deputies and he seemed to be adopting a rotational system. Khupe was appointed acting president sometime in 2017. In January 2018, he appointed Mudzuri. A dispute arose in early February, a week before Tsvangirai’s death, when Chamisa claimed to have been appointed acting president. This dispute, which is a matter of fact, subsisted at the time of Tsvangirai’s death.
However, there is another provision which could have been used to deal with the uncertainty. This is Article 9.31(a) which provides as one of the duties of the national chairperson “to perform the duties of the president’s office in the event that both the president and deputy president are unable to perform the functions of the president’s office”. The president cannot perform his functions because he is deceased. There is no clarity over the identity of the deputy president, there being three of them, each with a claim but there being no provision to determine who assumes the role of acting president. It could be argued, therefore, that the deputy president is also unable to perform his/her functions. In this situation, the national chairperson could easily fill in using Article 9.31(a) but only temporarily while he prepares the party for an extraordinary congress. This, in my view, is one practicable and constitutional way to resolve this messy situation. It does not involve making up or bending the rules, as would arguably be the case if other routes are used.
Nevertheless, as I have said elsewhere, at the end of the day, the leadership question is a political matter which must be resolved politically. The matter has therefore been contested politically rather than constitutionally. The constitution only features to legitimate the political claims to power. Courts of law are often reluctant to interfere in affairs of membership-based organisations which can resolve the issues through majority decisions unless there is clear evidence of prejudice and oppression against minorities. What is the point of a court of law making a legal decision which can be promptly nullified by a majority decision of the organisation? It is to how these games of power have played out in the court of politics that I now turn.