The 21 May announcement introduced a new dynamic to this wrangle. Previously, MDC Alliance members insisted that the Supreme Court judgement had nothing to do with them. They are now claiming a right to be consulted in the implementation of a judgment which, in their words, is not germane to their political fortunes. They constituted themselves under a constitution they disowned to meet a leadership they do not recognize. This is not what the constitution permits. They can only petition Dr.Khupe if she is their leader and they are members of her party, which would be at odds with the mantra of Chamisa Chete Chete. It is the dark art of applying rugby rules to a game of soccer. What is handball when committed by the other team is not only excusable, but actively encouraged when done by your own team.
If the MDC Alliance members can petition Dr.Khupe under the MDC-T Constitution, then she is their leader with an attendant power of recall. It also means the petitioners are members of the MDC-T, without which membership they have no right of audience. It redounds to the original claim that the Alliance was a coalition whose individual membership was retained by its constituent parties. MDC Alliance party members cannot constitute themselves as the authentic structures of a different party altogether. This duality of membership is being created to re-enact the events of 2018 when Dr. Khupe’s constitutionally mandated incumbency was usurped in favour of Advocate Chamisa. It is meant to flex Chamisa’s populist muscle to counter the weight of two court orders. We are literally going round in circles. The main MDC’s response to the finding of constitutional violation is to re-engineer events which led to the current quagmire. Needless to say, this is not a spitting image of progress.
What happened to the Alliance?
This foments confusion in an already messy set of narratives and counter narratives. For a long time, it was understood that the Alliance ceased to exist after elections when the MDC incorporated MDC-Green and PDP. This all changed after the Supreme Court ruling. Suddenly, it was claimed that the Alliance had actually continued after elections but only switched to a stand-alone party incorporating MDC-Green and PDP. This mutated further when we were informed this week that the Alliance ended on 2 March 2018 and became one political party with MDC-Green and PDP before elections! According to Jameson Timba, the 11 September 2018 appointments of Welshman Ncube as vice president and Tendai Biti as deputy chairperson actually occurred before elections. It is enough to make your head spin. In the Supreme Court, the MDC had argued that the wrong constitution was used by the High Court before conceding that the correct version had been used. After the Supreme Court ruling, the MDC distanced itself from that constitution and adopted the Alliance identity. After insisting on all platforms that the Alliance did not need a constitution, Chalton Hwende indicated this week that they actually have a constitution! It is not clear whether there is a coherent set of facts in this matter, or rather a contrivance of claims conjured up over time to ameliorate the effects of an adverse court ruling.
Ultimately, this probably does not matter for many voters. They just want a viable alternative to ZANU PF and believe any misfeasance by MDC is negligible in comparison to the ruling party. That is a reasonable calculation. However, it remains possible to support the opposition and still question why the MDC has a written constitution if they want to operate with the sovereignty of the UK parliament. Constitutional supremacy is at odds with the current claims of plenary powers accorded to the majority. It also seems counter-intuitive to subject the party to court processes if party leadership is unwilling to comply with court orders. This approximates to the words of then Commissioner of Police Augustine Chihuri when faced with an order to evict land invaders in 2000:
… Police intervention in one place will apocalyptically provide the match stick that will ignite this beautiful country of ours into a bloody conflagration…..Equally the courts are not the forum where the land problem can be solved. It required an armed struggle to begin to attempt a solution to the problem. …. This Honourable Court should be mindful of that.
The MDC has adopted a similar approach in discounting the role of courts and arguing for impossibility of enforcement. On this 7th anniversary of the 2013 Constitution, we must recall that the rule of law also requires compliance with unfavourable court orders. Political parties and nation states are guilty of enacting constitutions which they are not willing to implement. This implementation gap defines the distance between the respective constitutions and a culture of constitutionalism. Constitutions are not just about majorities. They give minorities a chance to avoid tyranny by numbers. Insistence on majoritarian views to trounce constitutional imperatives stifles the capacity for diverse and inclusive development. Further, perpetuating a battle which was settled by the Supreme Court only entrenches this aversion to the rule of law leaving the party vulnerable to more adverse rulings. The 22nd of May should remind us all that it is commitment to constitutionalism which will restore the image of our country and its political parties as grounded in justice, equality and the rule of law.