HomeOpinion & AnalysisThe challenges of implementing the Khupe judgment

The challenges of implementing the Khupe judgment

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THE implementation of the Thokozani Khupe judgment tells us no more, and no less, than we should know about the legitimacy of a court judgment.

By Sharon Hofisi

In political and legal sequence, it describes the growth of political party systems, of distinct political parties, and of paradoxes, all as they were troubleshot by judicial policy making. Realisation of which MDC-T can now enforce the
judgment at party congress and national parliamentary levels, is the keynote, never mind the fells and dales of the
MDC-Ts, one under Nelson Chamisa and the other under Khupe.

The above may sound precocious, but precocity isn’t intended in this think-piece. The concept of political
systems as metrical systems demands that we look at the MDC-T which the late founding leader Morgan Tsvangirai left, and was claimed by both Khupe and Chamisa, as some Blackbox which enables us to determine the inputs and
outputs in the political environment which the Supreme Court attempted to investigate and interpret. In trying to conceptualise the political system in the MDC-T under the control of Khupe, never mind the current calls to fire her as party president, and the MDC-T that was under Chamisa when the MDC Alliance was initially formed
as an electoral pact with a unique constitution, there are methodological issues that must be identified: Should the two MDC-Ts under Chamisa and Khupe be regarded as a single unit or is it preferable to view them as forming distinct systems, albeit assuming one party label?

What is described as MDC-T under Chamisa or Khupe and who owns the MDC-T that is affected by the Supreme
Court judgment? The latter question is important in determining who between Chamisa and his Alliance partners or Khupe and those claiming control of the MDC-T through her, can be considered as the legitimate initiators of action in implementing the Supreme Court judgment at party congress level or in exerting political control through recalling of MPs from Parliament as has been circulated widely in the media.

Further, if the two MDC-Ts under review are regarded as distinct collectives, another methodological problem
arises in relation to the environment that defines their political systems. To this end, the political behaviours of the two MDC-Ts and their leaders since Tsvangirai’s passing have to be considered under the sub-themes of human
and non-human or ideological pursuits which affect the operations of the two political parties.

Because I said the judgment’s implementation revolves around the legitimacy thread, the litigants who were involved in the judgment are at large to treat it as some form of judicial policy making at party level. It must also be stated that policy isn’t law and law isn’t policy. While the respect of court orders is important in any juridical environment, and the judgment can be considered important from the perspective of bringing finality to litigation, it unfortunately, with due respect, resulted in the fractionalisation of party issues that had long become merely academic.

In other words, the resolution of the presidential legitimacy question between Khupe and Chamisa had long
ceased to be a political survival instrument for both figureheads in the MDC-Ts which they represented when
the court challenge was instituted. Both Chamisa and Khupe had, by the time the judgment was issued, amassed
hard, structural, social and soft powers that were enormous even to the point of encouraging them to challenge for
President of the Republic of Zimbabwe.

The judgment also came when Khupe’s term had expired and other key members in the MDC-T under
Tsvangirai had either voluntarily resigned, such as Jessie Majome, or had formed and joined the MDC Alliance
like Chamisa and his MPs. In making some nuances here, let me avoid legalese and deal with the gravamen of a
political party.

In conceptualising a political party in terms of its form and characteristic functions, Lipson (1953) defines
a political party as a collection of individuals clustering around an interest whose furtherance they make an issue
and whose value they generalise into an ideal.

What political party members ideologise must be explained constitutionally using the doctrine of justiciability
which enables those adversely affected by a decision to take a matter to the courts of law so that the actions of the decision-making machine can be reviewed. In political cases such as the one under review, let me, with alacrity, point to how courts normally interpret justiciability together with the political question doctrine to refuse to accept constitutional matters which violate the political question doctrine.

The doctrine, a subspecies of the constitutional avoidance doctrine, obligates courts of law to leave political
matters to forums other than the judicial branch. For instance, if Parliament acts at the instance of the MDC-T under Khupe or MDC-T under Chamisa, the affected members under Chamisa can challenge the legislative decisions
in the courts of law by using the MDC Alliance as the party to which they distinctly belonged when they were elected into Parliament.

While the debate on the legitimate control of the MDC-T may rage ad infinitum, notorious facts on the MDCT now show that the MDC-T under Khupe registered as a distinct entity from the MDC-T in the MDC Alliance, under Chamisa during the 2018 elections. In constitutional parlance, the political question doctrine becomes
very useful as it obligates the courts of law to possess knowledge on non-legal issues, and to invoke techniques not
suitable for a court or not explicitly assigned by the Constitution (In this case, the national Constitution of 2013, the
Alliance Constitution which is sui generis (unique), and the MDC-T constitution of 2014.

The latter constitution was interpreted by the Supreme Court to give presidential legitimacy to Khupe. Had the
political question doctrine been used in the Supreme Court judgment, the courts could have, with legal certainty, considered the presidential legitimacy issue in the MDC-T as a constitutional dispute that was wholly political in that
the Siamese twins had intentionally assumed seemingly fraternal label the definition of a political party
preferred above, the party in form becomes a collection; such as the MDCT under the presidency of Khupe or the
MDC Alliance, under the presidency of Chamisa.

The function of the political party would be to cluster, further, and generalise an object, that is, the party’s interest. The definitive moment to explain this was seen during the 2018 elections when Khupe and Chamisa were both presidential candidates who were nominated by their respective political parties to try and obtain the seat of government.

In this sense, the political parties that can deal with Chamisa’s MPs or Khupe’s MPs for instance of the party recalls
on MPs in terms of section 129 (k) of the Constitution are the MDC-T under Khupe, and the MDC Alliance, depending on which party has parliamentarians who can be recalled. This is because the two parties are distinct subjects, predicates and objects.

Further, a political party depends on what is assigned to it by its representative definers: community, association,
agency, group, league of interests, durable organisation, sort of institution, aggregate, name, process and so forth.
The MDC Alliance and MDC-T under Khupe have, since 2018, been furthering, promoting, and expressing different interests.

Khupe’s MDC-T had its own elective congress in 2019, where members who have now fired Khupe
from the helm of their party were also elected.

The objects of her party’s elective congress were thus to shape a distinct line of policy, public opinion, government interest, personnel, candidature, political aims, electorate, and so forth.

No wonder those lieutenants calling for Khupe’s ouster also in a way, struggle to accept the legitimacy of the Supreme Court judgment in as far as it alters the status quo that saw some of them assuming executive positions.

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