Wednesday, 1 April 2020

SUPREME COURT JUDGEMENT IS SERIOUSLY FLAWED, SAYS COLART


The Mnangagwa regime is deeply concerned about the threat that Nelson Chamisa’s MDC A Party poses to its hegemony and yesterday went to extraordinary lengths to try to neutralise that threat. On the face of it the Supreme Court has ordered Chamisa to submit himself to another Congress of the MDC which will be convened by a political opponent Thoko Khupe.

The Supreme Court through Judges Patel, Garwe and Guvava itself had to contort legal reasoning to arrive at its judgment. Whilst the thrust of this article is not to give a critique of the judgment suffice it to say that its legal reasoning is seriously flawed from start to finish. A few examples: firstly, when the case was brought the pleadings show that the Party cited was the MDC T. The Judges changed that in the judgment to the MDC alone, which it cannot do. The only “MDC” party the Zimbabwe Electoral Commission (ZEC) has recognised since 2008 has been the party known as the MDC led last by Welshman Ncube which formed part of the GNU, but which was dissolved when it joined the MDC Alliance prior to the 2018 election. This was no typographical error by the Judges but part of the deliberate attempt to conflate a variety of parties into one MDC so that the purpose of the judgment could be achieved.

Then, secondly, although the Court agreed that the entire issue was moot (because both Khupe had held a Congress for the MDC T in May 2018 and the MDC A had a Congress in May 2019) and that it “cannot but take judicial notice of (certain) political realities” it chose to be exceptionally selective in which realities it took notice of. The one glaring fact which the Court ignored was what State organs have accepted as fact – namely that the July 2018 election was contested by, amongst others, two separate political parties, namely the MDC T under Thoko Khupe and the MDC A under Nelson Chamisa, which were accepted as different political parties by ZEC, and have been accepted as such ever since. Parliament itself accepts that there are two separate parties in Parliament at present – namely MDC A and MDC T. These facts were conveniently ignored by the Supreme Court which was clearly at pains to conflate the two.

Then at page 32 of the judgment Patel J accepts without demur the contention of Khupe’s lawyer Mr Madhuku that there are “two groups calling themselves the MDC T and there is therefore a leadership wrangle which must be resolved”, and uses that later on in the judgment to say that despite the “mootness” of the matter that is the issue which must be resolved. There are not two leaders claiming to be leaders of the MDC T, nor have there been since mid 2018. Nelson Chamisa stood as Presidential candidate for the MDC A in July 2018 and Thoko Khupe stood as Presidential candidate for the MDC T. Chamisa has never contested Khupe’s right to stand as President of the MDC T. So the attempt by the Judge to construct a “leadership wrangle” which must now be resolved is entirely contrived and flies in the face of facts which are all before us. It is remarkable piece of legal gymnastics but falls flat and will forever hereafter be a serious blot on the Supreme Court.

Sadly the perception that this is political judgment is further enhanced by events which surrounded the handing down of the judgment. Firstly, the timing of the judgement is curious. Our leadership has known about the existence of the judgment for weeks and yet the Supreme Court chose to hand it down two days after a nationwide lockdown called to combat the Coronavirus pandemic. The timing is made all the more intriguing given what the Chief Justice himself ruled, namely that the judiciary would join the lockdown and that all cases save for urgent matters would be postponed. The inescapable inference is that the Court chose this timing deliberately because it was politically convenient to do so.

Secondly, it is clear that not only did the other people, save for Chamisa, have prior notice of the existence of the judgment but also knew its content. The 4 page typed and edited statement read out by Morgan Komichi at the conclusion of the judgment was obviously prepared well before the judgment. One asks the question – how did he know about the content of the judgment, and the ruling it would make, in advance and have so much time to prepare the statement he did? Nelson Chamisa’s lawyer Innocent Chagonda was only advised that judgment was going to be handed down at 9 minutes to 12 noon yesterday. In like manner Thoko Khupe’s tweet issued yesterday morning was clearly optimistic – she ended it as follows “In unity let’s renew & build our great Party”. What did she know to give her such optimism prior to the judgment being handed down? Linda Tsungirirai Masarira tweeted at 12.16pm yesterday “I have got a feeling that today is going to be a very good day for me…” What gave her that cause for optimism? As far as I know she isn’t clairvoyant. Then finally on this score the Police were deployed well before the judgment locking down the MDC A’s headquarter building. Why was this necessary unless the Police had prior knowledge that the judgment was going to go against the interests of Nelson Chamisa’s MDC A party?

Unfortunately the content of the judgment, its final ruling and the circumstances of its delivery have compounded the perception in the minds of many that the Judiciary has not acted professionally, independently and in compliance with its Constitutional obligations. But there is no meaningful appeal to the judgment and so democratic forces have to accept its reality and move on.

Despite the contortions of the judgment the fact is that this case was brought against the MDC T, not the MDC A. That was the party cited in the pleadings and the attempt by the Judge to conflate the MDC T and MDC A parties failed to the extent that the order to have another congress can only apply to the MDC T party led by Thoko Khupe. She can go ahead and have another Congress and we in the MDC A will not do anything to hinder her and her colleagues.

However there is no doubt a more insidious aspect to the machinations of the Mnangagwa regime and its allies Madam Khupe and her colleagues Mwonzora and Komichi, which is revealed in paragraph 6 of Mr Komichi’s statement – namely that “the current leadership is asked to hand over the assets of the Party to the Secretary General. All financial records should be handed over to the Treasurer General of the Party”. Unless Komichi is referring to the assets of the MDC T led by Ms Khupe he too seeks to conflate the MDC T and MDC A parties. I personally have never been a member of the MDC T and in May last year was elected as Treasurer General of the MDC A. The bank and party accounts I have opened since then are all in the name of the MDC A and the MDC A constitution was used to open those accounts, not the MDC T constitution. Likewise all the assets which have been acquired since May 2019 clearly belong to the MDC A party, which is not subject to this order of the Supreme Court.

It is clear from the actions of the Police yesterday, who blocked Vice President of the MDC A Tendai Biti from entering the MDC A headquarter building, and this morning when they blocked members of our staff from entering the building, that the State is going to back Mr Komichi’s attempt to seize control of MDC A assets. If ever there was evidence that this is entirely a plan concocted by the Mnangagwa regime to destroy the only political party which poses any threat to its control, then this is it. The judgement does not give the Police these powers. The Headquarter building is not even registered in the name of any version of the MDC but is owned by an independent Trust which leases it to the MDC A. Without a court order in the name of the Trust the Police has no lawful right to bar the MDC A from using the building.

There is also no doubt that the Mnangagwa regime will now use this judgment to block the Parliamentary budgetary amount allocated to the MDC A. We are currently entitled to some RTGS $ 7 million to run our operations but the regime has been stalling for weeks now on transferring the money allocated to us in last year’s budget, yet another example of how the contents of this judgment have been known for weeks. The RTGS $ 7 is due to us by virtue of the proportion of seats we have in Parliament. The MDC T does not get any allocation because it did not meet the threshold of percentage of seats which have to be won as contained in the Political Parties Act. We are entitled to this money by right of law as set out in the Political Parties Finance Act and the judgment, I repeat, makes no mention of the MDC A party and does not apply to it. Any blocking of this amount will be entirely unlawful.

The only good thing about yesterday’s judgment is that it lays bare once and for all those who had infiltrated the MDC A and indeed the original MDC established in September 1999. Their identities are all now known, working as they are hand in glove with the Mnangagwa regime. It interests me that many of those now exposed are the very people who worked so hard in 2005 to divide the original MDC party and succeeded then. I was present at the meeting of the MDC A Standing Committee on the 10th March 2020 when Professor Welshman Ncube clinically interrogated Messrs Mwonzora and Komichi regarding the intelligence our leadership had then about the ZANU PF plot. They denied it all and pledged afresh their allegiance to the MDC A. I have found their duplicity breathtaking. History will judge them harshly. Moreover we will be all the stronger without having such charlatans in our midst.

What about the way forward? We will of course use all the power at our disposal to resist these machinations. But more importantly is what I shared with Nelson Chamisa this morning particularly Psalm 73:26 which says “My flesh and my heart may fail, but God is the strength of my heart and my portion forever”. Isaiah 40:29 says “He gives strength to the weary and increases the power of the weak”. There is no doubt that in many senses we are now at our weakest – we have the full force of a brutal, corrupt and violent state arrayed against us. The regime will probably use its power to deprive us of our buildings, assets and income in the coming weeks.

But I believe that it is in our moments of greatest physical weakness that we are strongest. This judgment has stirred the wrath and indignation of our members, supporters and friends in Zimbabwe and throughout the world and from the messages I have received since the judgment it is clear that if anything this will only boost our support. Our real power lies not in our physical assets but in our steadfast belief in, and compliance with, the principles of democracy, justice, non violence and respect for the rule of law, and the unwavering support of millions of Zimbabweans who believe in the same principles. It is that power which will enable us to prevail.

Senator David Coltart

Treasurer General MDC A

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