Such a finding would have gained huge international support for MDC, as well as showing all Zimbabweans that an MDC government was definitely the way forward.
Instead, we watched with growing disbelief the inept presentation of a case that was full of allegations and accusations, but with no substantial factual, credible evidence to back them up. It is true that the MDC lead counsel was engaging, charismatic, very articulate and easy to listen to. But that does not win court cases – only proven, demonstrable facts do, and those were almost non-existent – or, as it turned out, just plain wrong.
We could not believe that experienced lawyers could be so incompetent, so then we hoped that, at the last minute, MDC were going to pull a rabbit out of the hat, one so powerful that not even a court as biased as this one would be able to stand against it. After all, there were plenty of rabbits available for MDC to use, and this is a common legal ruse used by lawyers, producing last-minute evidence that the other side simply cannot answer, and leaving the court unable to do anything but find for the applicant.
But no hat and no rabbit appeared.
We then watched the lawyers for ZEC and ZANU PF do a professional job of dismantling MDC’s case. Not that this was difficult because MDC had left itself wide open, and a first-year law student could have done the job of destroying their case.
To make it worse, the cameras caught MDC’s lead lawyer giggling while ZANU PF’s lawyer was addressing the court. That sort of behaviour really angers judges, and it will turn them against you. So this was extremely bad tactics and childishly stupid on the MDC lead lawyer’s part. He was lucky the court did not reprimand him because most courts would have. But maybe the court knew MDC’s cause was already lost, so discretion would be better served by not doing so.
Nor was the court forced to show its ZANU PF bias because no impartial court could have found for MDC on the evidence presented. In fact, MDC’s case was so bad that other courts would have found the defendants had no case to answer. Indeed, had the court found for MDC, it would have shown very strong pro-MDC bias, and that would have been as bad for Zimbabwe as a pro-ZANU PF court.
MDC have claimed that the court showed its ZANU PF bias in its heavy examination of MDC’s lead lawyer, but that is to twist the situation, thus making MDC guilty of the very thing of which it accuses the court. The fact is that MDC left itself wide open to the court’s attacks by its failure to provide proper evidence, and the court behaved quite properly in trying to elicit proper evidence.
Indeed, one could claim that the court was actually trying to assist MDC’s lead counsel by pointing out that he needed to provide hard evidence and was not doing so – although, of course we all know that was not its motivation!
It also needs to be pointed out that the court would have been well within its rights to throw out MDC’s case due to service out of time. And most lower courts would have done so without hesitation. So clear is this that one of the first things legal students learn is that to serve documents out of time is one of the worst sins a lawyer can commit, killing their own case before it has even started.
It begs the question: why did MDC prepare such a shoddy case – by far the worst we have ever seen in a major case? This was not a shop-lifting case, it was one where the future of a nation was at stake, so how could MDC have done such an appalling job?
Some apologists have said that MDC was clearly out of its depth in this hearing. We cannot go along with that because here we have highly experienced lawyers, even supported by experts from South Africa, and the case they had to prepare was not difficult. They know very well that rhetoric – no matter how good it is – and the rhetoric of MDC’s lead counsel was excellent – cannot win court cases. Only facts and hard evidence can. And they know that one simply must not serve documents out of time.
So why were these schoolboy errors made? A lawyer can only act in accordance with client instructions. So did they get the support and direction from Chamisa that they should have done? Because if the lawyers were not incompetent, then Chamisa and/or his advisers must have been. MDC cannot have it both ways.
What makes the whole debacle worse is that MDC has been trying to justify its handling of the case, predictably blaming court corruption. But the court simply did not have to be corrupt to find against MDC. It was merely and correctly doing what it should have done, which is to follow the evidence presented. MDC’s failure to accept that it was in error is a great concern. Had it done so, admitted its errors and learnt from them, one would have respected them even more for their self-honesty.
But to refuse to accept the truth and blame other people – especially when every fair-minded person could see MDC was to blame – is, frankly, both dishonest and stupid. And the other problem is that, unless people admit to their errors, they do not learn from them to become better at their job.
Whether MDC won or lost was irrelevant because, either way, this was a truly Heaven-sent opportunity given to MDC which it could truly have turned to its advantage, coming out of the court case with flying colours and showing that it was utterly fit and ready to lead Zimbabwe into a new future. Most politicians would not have believed their luck if they had been presented with such an opportunity given to them on a plate.
Instead, and we find this almost impossible to believe, MDC somehow managed to achieve the opposite. If Chamisa and MDC could not even handle a very simple open-and-shut case, how can either he or MDC be fit to run a country? The answer is: they cannot. Regrettably, the case has shown up a Chamisa who is clearly unfit to lead and an MDC that is not ready for office. We were great MDC supporters, but now we are not so sure. Our view now is that the country would be better to stick with Mnangagwa until such time as MDC comes up with a better leader than Chamisa and prove themselves ready for and worthy of office.
David Barber and Tendai Ruben Mbofana are Co-Principals of The Arise-Africa InitiativePost published in: Featured