In the midst of the Corona virus pandemic when all efforts are being made to save lives, the Supreme Court delivered a long-waited judgment to an appeal by Advocate Nelson Chamisa together with Senator Morgen Komichi. The timing of the judgment has resulted in people calling it the “Corona Judgment” referring to the current and ongoing national lockdown period caused by COVID-19 outbreak. MDC Alliance leaders have already said that they expected the judgement and they were not surprised at all considering the outcome of the 2018 general election and the subsequent pronouncements of the same captured courts. They had information as per Professor Ncube, from their intelligence regarding the involvement of some of their comrades in Zanu PF shenanigans to destabilise the party hence the quizzing of Senators Douglas Mwonzora and Morgen Komichi during the 10 March Standing Committee meeting.
A lot has been said regarding this judgment but after all has been said and done, the judgement has left Adv Nelson Chamisa a winner in three ways.
- The court concurred with his reason for the appeal,
- It confirmed that the courts have been captured, and lastly
- The Iscariots around him have been flushed out.
I will revisit these three points later but for now let me deal with the conclusions of the Judges after hearing arguments form the litigants.
The Judgement written by Justice Patel with the concurrence of Justice Garwe and Justice Guvava made two significant conclusions which ought to have been fundamental in their final order; That the matter had indeed been rendered moot and academic due to political realities on the ground, and The imbroglio that the Party’s leadership has become entangled in may well be water under the bridge.
The case being moot and academic:
When a matter is said to have become moot, in legal terms it simply means that the legal question cannot be determined by a court of law, it cannot be enforceable and therefore the proceedings will be largely an academic exercise. In this particular case a number of events have happened that have rendered the matter moot and therefore making it impossible for the court to make a binding and enforceable order. The facts of the matter are that Advocate Nelson Chamisa and Dr. Thokozani Khupe worked together in MDC-T, parted and went separate ways causing the birth of two political parties MDCT and MDCA. It is a fact that Adv Nelson Chamisa did not form the MDCA immediately but later engaged other parties to form the MDCA party which went on to contest the general elections of 2018. The two parties held their congresses within their respective parties cementing their separation. Therefore, the court cannot force the two to come back together and continue as the old party since the new parties now stand as voluntary organisations as per court decision in Kudakwashe Bhasikiti Chuma v Robert Gabriel Mugabe & others (2015). Their circumstances can be likened to a married couple which divorces and proceed to start new separate families. When such a matter is brought before a court, their differences are said to be irreconcilable and the marriage irretrievable. Under these circumstances no court of law can order the two to come back and live together as husband and wife. If it happens that the court makes such an order, in that case the court will be acting outside of its role and would be said to have erred by acting outside its mandate or reason for existence.
A moot is a law school court room exercise which its conclusions can never be enforced outside that room let alone inside. One good example is the late Dr. Morgan Tsvangirai’s election challenge in 2002 that has not been heard up to now. There is no point for a court of law to convene a hearing on the matter now. However, if they decide to go ahead and hear the matter then it is moot because it will not have any effect on the present and neither will Dr. Tsvangirai be declared the President of Zimbabwe for two reasons.
Dr. Tsvangirai is no longer alive to fulfil the judgment, three Presidential elections have since happened and have rendered the 2002 election challenge a moot.
Three events have also taken place that have rendered the Mashavira matter moot; the separation of Adv Chamisa and Dr. Khupe to take up positions of their respective political parties, the holding of congress by the respective parties to select their leaders and the participation of their parties in 2018 general election in accordance with Zimbabwean electoral laws. The Supreme court lacked foresight on the effect of the judgment on all these processes and mainly the likely effect on the 2018 general elections. Loosing parties can sue ZEC for not conducting the elections according to the constitution if, let’s say that they allowed Adv Chamisa to “fraudulently” contest as a leader of another Presidential candidate’s party in this case MDCT led by Dr. Khupe. Dr. Khupe might want to claim the votes that were garnered by Adv Chamisa and this would have a knock-on effect on the final winner of the Presidential race Emmerson Mnangagwa whose win would need to be reviewed.
The judgment is so complicated that even if the courts would want to enforce the judgement, there are other complications such as the matter of MRT House which both MDCA and MDC-T may claim to be their Headquarters. MDC Alliance which is using the building has a lease agreement with the Trust that owns the building and the purported takeover of the building by MDC-T would bring in further legal complications. The other complication comes from the Zimbabwe Treasury’s payment of political parties which currently is paid to the MDC Alliance. The Treasury cannot pay another party which did not get the required number of seats to qualify for government funding according to Political Parties (Finance) Act (2002). Whichever route one may wish to take, there are unnecessary legal complications that arise from the judgment that renders it impossible to enforce.
Usually when a case has been identified to be moot, it is dismissed at the preliminary stage where the parties will agree without going for full hearing. Allowing such a case to go for a full hearing especially after the court had considered the presence of ‘inescapable facts that loom large on the country’s political landscape’, that is, the current status quo of political parties in Zimbabwe as confirmed by the 2018 general elections, was not only a waste of time, but also an exposure of the court’s bias in one way or the other. According to Justice Patel, principle number one regarding mootness of the matter states that ‘a court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy between the parties. Thus, if the dispute becomes academic by reason of changed circumstances, the case becomes moot and the jurisdiction of the court is no longer sustainable’ as per Khupe & Anor v Parliament of Zimbabwe & Others (2019). The principle fits very well with the events that took place in the MDC party and its leadership wrangles.
MDC-T leadership wrangle is water under the bridge:
The Supreme Court also concurred that the issue of party leadership was “water under the bridge”. The simple translation is that nothing can be done about the situation, let us forget about whatever happened, let us open our arms and embrace reality. In this instance, Justices Patel, Garwe and Guvava were urging the litigants to forget about the past and move on, which is what the parties have done; Adv Chamisa has moved on with the MDC Alliance and Dr. Khupe has moved on with the MDC-T & POLAD.
The shocking part of the judgment is the recommendations that the Judges go on to pronounce after the findings/conclusions. It is a simple academic rule that the recommendations must be in sync with the conclusions. One does not need to be a lawyer to notice this anomaly in the judgment. Two questions will come in the judgment readers’ mind; Did the three judges not realise that their recommendations were not in sync with the conclusions? Were the learned Judges not awake to this simple rule or did they just deliberately decide to ignore the essay writing rule and went on to act as if they had suddenly become commoners?
Presiding over a matter in court is simply giving the litigants an opportunity to present their facts while you listen, analyse the facts and make a ruling based on the facts presented. The Judge presiding over a hearing does not have a duty to interfere with the way litigants present their facts hence some of the cases are lost on the basis of the lawyers’ presentation of the facts. It is not the duty of the Judges to argue the matter on behalf of the lawyers, it is neither their role to interfere in any way, shape or form while presiding over the cases brought before them. In this Corona Judgement this is exactly what the Judges did when they said they had the duty to reconstruct the bridge. When the Judges pronounced that the case is now water under the bridge, any effort to reconstruct the bridge is interference. The interference is not only with the lawyers’ duties but also with the way political parties run their business. In other words, the Judges are telling the world that political parties cannot be formed or disbanded without the courts’ involvement. The judgment is a shock to everyone in the legal profession except for those in the Zanu PF and the MDCT & POLAD. Not only did the judgment show double standards in the courts dealing with similar cases, but it is the worst judgment ever passed by a supreme Court in the history of Zimbabwe.
In conclusion, the MDCA is right in taking the stance that the judgement does not affect their party because the original MDC and MDC-T were disbanded, and the leaders have gone different ways with the split membership. The judgement does not give an order to MDCA and neither does it point out anything improper or illegal regarding the formation of MDCA.
The suggestion and action by the Judges of reconstructing a new bridge simply means that the Judges are recommending the formation of a new party which they forgot to give a name because all bridges have names. When one constructs a bridge, they will name the bridge and perhaps organise an opening ceremony. The MDCA stance is also bolstered by the fact that the Judges concluded that the MDCT existence and leadership wrangle was now moot and academic.
Should Adv Nelson Chamisa respect the judgment?
The POLADISTS are trending that Adv Chamisa must do the honourable thing and respect the courts by accepting the judgment. They are questioning why Adv Chamisa appealed the High Court decision if he was not going to abide by the decision? The simple answer to this question is this; Adv Nelson Chamisa (just the same as Mashavira in the High Court judgment) is also not compelled by the Supreme Court judgement. Mashavira approached the High Court because he wanted justice to the leadership transition process in MDC-T which he was not part to. Mashavira approached the High Court as an MDC-T member, but the judgment did not even mention a single thing that he should do as the applicant in the matter. Mashavira’s position, therefore, is the same as Adv Nelson Chamisa in this Corona Judgement in terms of individual members’ rights to justice. The Judgement orders Dr. Khupe and Mr. Komichi to call for a Congress and not Mashavira or Adv Chamisa. The judgment does no declare MDCA an illegal organisation and neither does the judgment dissolves the party, therefore live goes on as if nothing happened.
The High Court judgment did not make an order regarding Mashavira’s membership to MDCT (since he was the one who approached the High Court), and in this case the Supreme Court judgment does not order anything regarding Adv Nelson Chamisa’s MDCA Presidency. The right to approach a court as long as one has a locus standi is constitutionally enshrined upon every citizen who is affected by injustice in any organisation. It does not mean that their circumstances have to change because a decision has been made regarding their matter, especially a decision which does not specifically order them to act in one way or the other.
Advocate Nelson Chamisa a winner:
The mootness of the matter became a critical issue during the hearing and Advocate Chamisa through his lawyer Advocate Thabani Mpofu wanted the Supreme Court to pronounce that the matter was moot and do the right thing by upholding the appeal. The Supreme Court did conclude that the matter was moot as pleaded by Adv Mpofu. Justice Patel remarked in the judgment that ‘in the premises, I am inclined to agree with the appellants that the present matter has indeed been rendered moot and academic’. The admission by the court was supposed to be the end of the matter as far as Adv Chamisa’s appeal was concerned and the rest is the matter of the Dr. Khupe and Mr. Komichi to deal with, that is, if they can do anything about the judgment.
In his analysis of this judgment, Honourable Innocent Gonese submitted that Mashavira was simply a front and the real applicant was none other than the person who did not have the courage to bring the case but whose behaviour was always suspicious’. The speed at which Sen Mwonzora rushed to accept the judgment on behalf of the party without having sat down with the party leadership made him a sudden outstanding actor in the whole drama. On Sen Mwonzora’s side was Sen Komichi who surprised the nation by producing a speech which was well prepared prior to the judgment being delivered. Everybody asked the question ‘how did he know about the outcome of the judgment prior to its delivery? These two gentlemen were part of the leaders around President Advocate Chamisa and no wonder why advocate Chamisa tweeted a verse from the Bible Matthew 26:14-16. The words of professor Welshman Ncube were fulfilled, ‘we shall see which side you will be standing on the judgment day’. The two Judas Iscariots were exposed.
Advocate Nelson Chamisa remains the President of the MDCA and he is not in any way in breach of a court order. The order which is not in sync with the conclusions is an effort by Zanu PF to destabilise the MDCA using the courts. Zanu PF has captured the judiciary to augment their violence on MDCA with lawfare as explained by Dr. Magaisa in his recent BSR. Zanu PF wants to portray MDCA as an undemocratic, lawless and a party that does not respect court judgments. Unfortunately, with such kind of a judgment it will not work, simple. The struggle continues unabated.
Alexios P. Makotose
MDCA UK&I Legal Affairs Secretary