Zimpapers Logo

Tendai Mugabe and Lloyd Gumbo Harare Bureau—
Suspensions and expulsions by MDC-T leader Morgan Tsvangirai and his secretary-general Tendai Biti this week have created a leadership vacuum in the opposition party, with both factions seemingly unable to impose their authority and control. Legal experts yesterday gave varying views on the faction-riddled opposition party’s future, with the Tsvangirai camp discredited for unilaterally expelling Biti and 10 other legislators without following constitutional disciplinary procedures.

Some legal experts said the courts were the final arbiter in the leadership crisis, while others suggested Tsvangirai was in charge.
Terrence Hussein, a lawyer, said it appeared Biti’s faction followed the party’s rules before announcing its suspension of  Tsvangirai and his lieutenants.

“Tsvangirai seems not to have followed the audi alteram partem, which says before you take action against somebody, you must give them the right to present their side of the story so that they can have an opportunity to defend themselves at whatever organisation.
“In this case, he just announced that the Biti group had been expelled without following proper procedure.”

On the contentious issue of expulsion of MPs, Hussein said: “Since there are competing claims, the Speaker can either act or make a decision based on whom he believes is correct, which will result in the aggrieved taking the matter to court.

“He may also indicate to the parties that they need to provide him with a court order of who has the legal right to the party.”
University of Zimbabwe law lecturer Professor Lovemore Madhuku, a former MDC-T ally who has since launched his own party, said none of the sitting MPs from either faction could be booted out of Parliament at present.

“The two factions are competing to write to the Speaker saying they want MPs who belong to the other faction to be expelled, but what they do not know is that it is not automatic that the Speaker can just act on the basis of a letter written by someone claiming legitimacy – especially if there is a dispute,” he said.

“If they are to write to the Speaker claiming the other faction not to be legitimate, then he has to ask the parties to go to court because in terms of our Constitution, only a court of law can resolve disputes. As it stands, there is already dispute in the air.

“In other words, no seat will be declared vacant by either of the factions. So MPs from both factions must be assured that their seats are safe.”
Former Attorney-General Sobusa Gula-Ndebele concurred, saying only the courts could resolve the mess.

“Obviously this requires the intervention of the courts because each one of the factions is interpreting their constitution differently,” he said. “Either faction that wants finality to the matter should approach the courts.”

Lawyer Jonathan Samkange – himself an Independent MP – said it was improper for Biti and his colleagues to suspend Tsvangirai because he had refused to step down.

“I have no doubt in my mind that if Biti goes to court, he will lose,” he said. “From a legal point of view, you cannot suspend a leader on the basis that he does not want to change. Change is only effected at congress. If you change leadership midst, it is a coup and that is not permissible.”

This argument was supported by lawyer Professor Welshman Ncube.
Prof Ncube broke ranks with Tsvangirai over participation in the Senate elections in 2005 and now heads the formation using the name MDC.

“You should forget about the legal niceties or constitutional issues but look at the political realities. The reality is that the MDC-T has split into two. The fact is that there are those who support Tsvangirai and those who say ‘enough is enough’. Politics does not follow the law. It has its own way, not legal niceties.

“Whether one of the parties decides to go to court and regardless of what happens, they will continue to fight for the carcass or party name.”
Prof Ncube said judicial process could drag on for a long time in the same manner his party was embroiled in a dispute with Prof Arthur Mutambara over leadership of MDC.

He also said neither of the factions had moral authority to claim legitimacy in forcing expulsion of MPs.
Prof Ncube said he faced a similar problem with the then Deputy Speaker of Parliament Nomalanga Khumalo and other MPs during the tenure of the Seventh Parliament.

The installed acting national chairperson of the Biti faction, Samuel Sipepa Nkomo, said their strategy would work better than Prof Ncube’s during the 2005 split.

“Welshman’s team allowed themselves to form another party yet we are not doing that. We are still in the party,” he said.
“Times have also changed but it is more of the same old story of 2005. We had a properly constituted national council meeting whose decisions are binding.”

The Saturday national council meeting convened by Biti suspended Tsvangirai and his inner circle; among them party vice-president Thokozani Khupe, national chairman Lovemore Moyo and his deputy Morgan Komichi, national organising secretary Nelson Chamisa and his deputy Abednico Bhebhe, and spokesperson Douglas Mwonzora.

Biti has written to Speaker of Parliament Cde Jacob Mudenda saying only the secretary-general could recall legislators from Parliament.
Tsvangirai hinted at his plan to recall all MPs who attended the Mandel Training Centre meeting that suspended him.

The Biti camp claims that 138 national council members voted for Tsvangirai’s suspension while the Tsvangirai factions argues that 162 out of 167 members attended the meeting.

It has emerged that the Mandel meeting was attended by the majority of ousted provincial leaders, while people who attended the Harvest House meeting on Wednesday are those that replaced the fired members.