When politics dwarfs the law

By The Standard | May. 14, 2019 | 4 Min read

NELSON Chamisa’s adversaries across the broad political spectrum ululated at the pronouncement of the High Court ruling trashing the legitimacy of his presidency last week. The High Court rubbished the appointments previously made by the party founding president, the late Morgan Tsvangirai.

Guest Column: Learnmore Zuze

Tsvangirai, at the height of his cancer battle, appointed Chamisa and Elias Mudzuri as his deputies. Perusing through the High Court ruling, it evinces disdain for Chamisa’s presidency in a number of ways although arrayed in legal terms. The ruling precisely means that the appointment of Chamisa and his subsequent appointments are null and void at law.

Justice Edith Mushore’s ruling was primarily anchored on the revered principle of constitutionalism, which is fundamentally strict adherence to the MDC constitution itself. Under the circumstances, the process that saw Chamisa’s ascendency to the MDC vice-presidency was declared ultra-vires the MDC constitution.

Invoking the legal machinery, the judge principally accused the MDC of trampling upon the tenets of its very constitution.

This is precisely the crux of the matter. In the MDC constitution, Article 6.4.4.1, it is clarified that every member of the National Standing Committee (this includes the deputy presidents), should all be elected at the party’s congress. On the contrary, Chamisa and Mudzuri were appointed by Tsvangirai, with an endorsement from the party’s National Council.

Justice Mushore’s verdict was therefore premised on limitation of power by a Supreme Court which it did.

However, there are plenty interesting things emanating from this ruling. It is evidently a battle of politics and the law.

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In the legal field, there is something called misdirection. Misdirection occurs in matters of law or matters of fact. In misdirection on matters of law, material to the issue, whatever may be the nature of the case, the verdict will be set aside.

Misdirection as to matters of fact will, in some cases, be sufficient to vitiate the proceedings. It appears, for those criticising Justice Mushore’s ruling, the attacks have been mainly based on law and to a lesser extent rooted on fact because there seems to be unanimity as to the facts of the case.

This whole matter cannot be dissociated from politics. The ruling has been savaged from different angles and the most compelling argument from those arguing that this is a calculated part of a broader strategy to enfeeble the official opposition in Zimbabwe stems from the contradiction between two rulings from the same court: the current one versus the previous one.

Let’s rewind to the 2017 case of Patson Murimoga and Another vs Morgan Richard Tsvangirai N.O and 4 others HH635/17.

Murimoga and another MDC member were the very first people to challenge the appointments of Chamisa and Mudzuri as vice-presidents of the party. The High Court then, ruled that the two members who were challenging the appointments lacked locus standi (legal standing) to challenge the appointments. This effectively means the court did not specifically deliberate on the matter but dismissed those who were raising the matter.

The current ruling naturally raises a stink, because the matter pertaining to legal standing remains dispositive of the preceding matter of Murimoga and others who initially challenged the ruling. It is precisely this part of the whole matter, which, to the critic, smacks of a political underhand.

Both matters should have been, with similarity, dismissed as they, in essence, emanate from the same.

Of course, it can be argued legally that the High Court is not bound by its previous judicial rulings, but this, in my view, gives credence to those who believe there is a ploy to emasculate the MDC. Under the circumstances, it is inevitable not to scrutinise the matter through both political and legal lenses.

Critics of the judgment have been bundled under the same accusation of shunning legality in favour of political populism. However, like I continue to highlight, the matter cannot be divorced from politics.

Coming to political analysis of the matter, away from the legal jargon, one thing is clear; even though the law stands supreme, here the law will substantially be dwarfed by Chamisa’s popularity which is undeniable. It is even vexatious that, under the ruling, Thokozani Khupe, who is deemed the rightful leader of the opposition MDC, can call for an MDC Congress yet her own party has already held such a congress. Going by numbers, Chamisa is two worlds ahead of the rest of the opposition in Zimbabwe.

A leader is a leader not through the courts but by their popularity. An example would be one of a biological father to a child. In real terms, any man can be declared a father by virtue of being able to procreate but being a father transcends the nocturnal biological role.

A father is one who looks after the child; takes them to school; feeds them and provides mentorship.

In the same vein, politics will dwarf the court judgment because Chamisa is simply the most recognisable name in Zimbabwean politics and no amount of legal tomes can undo the fact. Even if Chamisa were to form a new party today, he would still command the massive following he has.

Indeed, this is a case of the will of people triumphing over a court ruling. There are simply some things which the law cannot do.`

Learnmore Zuze is a legal officer and writes in his own capacity.