Unpacking the Supreme Court ruling against Nelson Chamisa

This is true. The Court noted that Dr. Khupe may be involved with a different political formation, but found that it does not amount to abandoning her rights and interests terms of the MDC constitution. Her activities are insufficient basis to cleanse the constitutional abrogation by the MDC and its functionaries. In the absence of a judicial determination regarding the circumstances that led to Advocate Chamisa’s elevation, her rights and interests in the party remained extant, her activities elsewhere notwithstanding.

More crucially, Khupe and Chamisa both held congresses, none of which meet the constitutional threshold. Khupe had the law on her side whilst Chamisa had the people. Both are necessary for constitutional conformity, hence the order to hold the constitutionally mandated extra-ordinary congress.

7. What does it mean going forward

This judgment reinforces Dr. Khupe’s claim to the reigns of the MDC in real and material terms. She is the Acting President of the MDC at law. Matters to do with party assets, participation in the MDC Alliance as well as disbursements from the state all fall squarely under her stewardship. These are not trivial matters. It could mean an ability to recall members of parliament and local authorities, which comes with the capacity to whip elected representatives into conformity. Further, it enhances her ability to engage with regional and international actors as the only legally recognized leader of the main opposition. The swift moves by Morgan Komichi and Douglas Mwonzora to take assertive action and shape the political narrative suggest that those dismissing the judgment out of hand might be underestimating its utility.

Of course, Advocate Chamisa retains his public appeal. He can opt to use his numbers to trounce Dr. Khupe at the court-ordered extra-ordinary congress. But even as you are reading this, I suspect you share my doubt regarding the plausibility of such new found collegiality. The Advocate has done everything in his power to avoid any eventuality in which he is not at the helm of the Party, even temporarily. His experience running against Douglas Mwonzora in 2014 likely made him suspicious of electoral process which are not under his control. His loyalists’ retorts at the courts were as swift as they were sharp, signally continued disdain with any adverse rulings from the courts. Without any substantive critique of the judgment, they have opted for insistence that the judgment is inconsequential since their new found titular home is under the banner of the MDC Alliance.

Insisting on the identity of MDC Alliance involves relinquishing that of the MDC – which may come with loss of real and material power (and possibly assets). It is conceivable that grounds will be found to mount a constitutional challenge. However, the political dividend from such a move would be minimal in circumstances where there is no impending congress or plebiscite at which electoral performance can countenance constitutional misfeasance. This could be remedied by taking the radical route: withdrawing all their elected representatives and using the subsequent by-elections as an overwhelming show of force to upstage the rising Khupe tide.

The most certain outcome is that the Chamisa camp will not take this lying down. I previously presented this as a clash of constitutionalism against populism; a mild but alarming version of ZANU PF’s conviction that its electoral majority is a license to freedom from constitutional constraints. After the High Court and Supreme Court have both restated the contents and made orders in terms of the MDC’s own (now undisputed) constitution, they will no doubt retort…but we have the people! If they follow the court order they will also have legal propriety, without which there will be new installments in this ceaseless yet needless confrontation at the expense of consolidating opposition movement.

By David Tinashe Hofisi

http://davidhofisi.blogspot.com/

Ed: We welcome legal arguments for or against the judgment from lawyers, practising or academic

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