Mashudu Netsianda, Senior Court Reporter
THE Supreme Court yesterday ruled that Mr Nelson Chamisa is not the legitimate MDC leader in terms of the party’s constitution and subsequently ordered the convening of an extra-ordinary congress within three months to elect a new president.
The decision by the superior court settles the acrimonious MDC leadership wrangle pitting Mr Chamisa and Dr Thokozani Khupe.
The ruling by Supreme Court judge Justice Bharat Patel, sitting with Justices Paddington Garwe and Antonia Guvava, followed an appeal by MDC Alliance leaders Messrs Chamisa and Morgan Komichi challenging last year’s ruling by Harare High Court judge Justice Edith Mushore declaring that Mr Chamisa illegitimately acted as the party leader.
Justice Mushore also nullified the appointments of Mr Chamisa and Elias Mudzuri as deputy presidents of the MDC, saying they were unconstitutional.
In papers before the court, Dr Khupe, Messrs Elias Mashavira, Mudzuri and Douglas Mwonzora were cited as respondents. The dismissal of the appeal automatically reinstates Dr Khupe as the legitimate leader of the MDC, forcing the party to go back and start from February 15, 2018.
Justice Patel ruled that Mr Chamisa’s ascension to the helm of the party was fundamentally flawed by gross constitutional irregularities.
He directed Dr Khupe, in her capacity as the party’s acting president, to convene an extra-ordinary congress within three months from the date of the order to elect a new president.
The judge said in the event that Dr Khupe fails to comply with the order, Mr Komichi, in his capacity as the party’s national chairperson, should convene the congress within four months.
“It is accordingly ordered that the judgment of the court a quo be and is hereby confirmed, save for the deletion of paragraphs 4 and 5 of the operative order. The third respondent (Dr Khupe), in her capacity as the acting president of the first appellant (MDC), be and is hereby ordered to convene an Extra-Ordinary Congress, within a period of three months from the date of this order, in order to elect a new president,” ruled Justice Patel.
He said Mr Chamisa’s rise to the helm of the party was also in violation of the party’s core values.
“As I have noted earlier, Article 3 of the party constitution enshrines its status as a Social Democratic Party whose core values shall be solidarity, justice, equality, liberty, freedom, transparency, humble and obedient leadership and accountability. These core values of the party, if they are not to be reduced to merely hollow rhetoric, necessarily implicate the principles of good governance and adherence to the leadership requirements embodied in the constitution,” he said.
“The analysis of the relevant provisions of the constitution that I have articulated in addressing the grounds of appeal makes it abundantly clear that the second appellant’s ascent to the helm of the party was fundamentally flawed by gross constitutional irregularities. To perpetuate that situation without appropriate correction would not only undermine the ethos and dictates of the constitution but would also infringe the rights of all the party’s members to a constitutionally elected leadership.”
Justice Patel said Mr Chamisa’s conduct violates the principles of good governance and rule of law as enunciated in section of 3(1) of the country’s constitution.
“It is further necessary to ensure that the leadership of the party is constitutionally and lawfully ensconced. The imbroglio that the party’s leadership has become entangled in may well be water under the bridge, but it is a bridge that, for the sake of the party’s stature and credibility, needs to be correctly and systematically constructed. In short, notwithstanding the political mootness of this matter, it is imperative that there should be an authoritative determination of this appeal in the interests of justice,” he said,
During the Supreme Court hearing, Dr Khupe, through her lawyer Professor Lovemore Madhuku urged the bench to recognise MDC structures that existed in 2014 when the opposition party was being led by its founding president, the late Morgan Tsvangirai.
In her submission, Dr Khupe argued that Justice Mushore did not misdirect herself when she ruled that the MDC constitution does not provide for the appointment of more than one deputy president. Tsvangirai appointed Messrs Chamisa and Mudzuri as second and third vice-presidents respectively in 2016.
Dr Khupe argued that the appointment of Mr Chamisa as acting president during a meeting held in February 2018 while Tsvangirai was receiving treatment in South Africa was a violation of the party’s constitution since she was available.
In his submission, Mr Chamisa through his lawyer Advocate Thabani Mpofu, insisted that the MDC constitution provided for the appointment of more than one vice president and that Justice Mushore’s decision was misdirected.
He argued that Dr Khupe had moved on by leading her own party which held its congress, and above all participated in the July 2018 elections as MDC-T candidate.
Adv Mpofu defended Tsvangirai’s appointment of Mr Chamisa, arguing that he had powers to do so by virtue of being the leader of the national council, “a congress outside congress.”
Adv Mpofu said Dr Khupe also violated the party constitution by not inviting MDC’s Gokwe Sesame District secretary Mr Mashavira to her congress since he was the one who raised the issue of not having been invited to the national congress that ushered Mr Chamisa to the office of acting president
Mr Mashavira’s lawyer Mr Ashell Mutungura also submitted that the High Court did not err when it made a decision that Mr Chamisa was unconstitutionally appointed. — @mashnets