If you decide to follow the rule of law and constitutionalism, follow it religiously

Parliament, Senate, Senator Mwonzora have messed up

Matebeleland turn coming … Speaker, Jacob Mudenda


I have come under attack from less than a handful of readers for pointing out errors that have been made by Honourable Mabel Chinomona, President of the Senate; Advocate Jacob Mudenda, Speaker of Parliament; reinstated MDC-T 2014 Deputy Chairman and reinstated MDC-T 2014 Secretary-General Senator Douglas Mwonzora in the application of the Supreme Court Judgement which proposed that the MDC-T structures that were in place before the demise of the MDC-T Founding President Dr Richard Morgan Tsvangirai should hold an Extra Ordinary Congress to elect a replacement of the late Dr. Tsvangirai   vis a vis the MDC-T Constitution. I do not hate anyone, but when we want to be seen implementing the rule of law and constitutionalism, then we have to follow every step, otherwise we may be worse than those we are accusing of not following the rule of law and constitutionalism. As a result of the attacks, I will clarify how each of these persons erred.

Senator Morgan Komichi jumped out of the Court with a written speech announcing himself as the reinstated MDC-T National Chairman, obviously as he was ready for the occasion even before the announcement was made. That was a violation of the ruling which had just been made. Senator Komichi was not the Chairperson of the MDC-T at the time of the demise of the late Dr. Tsvangirai. He has a case to answer to the appropriate structures of the MDC-T structures that were in place before the death of Dr. Tsvangirai. Senator Mwonzora went on to endorse Senator Komichi’s Chairmanship theft at the same press conference held immediately after the ruling. He too has a case to answer to the appropriate structures in that regard

Senator Douglas Mwonzora went on to write to Parliament in his capacity as MDC-T Secretary-General to recall the parliamentarians belonging to another political formation, the MDC Alliance, without consulting with the appropriate reinstated organs of the MDC-T. In the first instance, the reinstated MDC-T was incapable of making any decisions between the demise of the late MDC-T President and the announcement of the judgement. It did not exist at law, therefore, so did not participate in the election; but two parties linked to it participated in the election as separate formations. In the second instance, the decision to recall the legislators was not done in consultation with the Party’s structures in place at the time of the demise of Dr. Tsvangirai, therefore null and void.

Section 5.10 of the MDC Constitution states that Membership of the Party shall be terminated if a member of the Party joins or supports a political party other than MDC,  or a member sends written notice of resignation to such address as may, from time to time, be specified for communications relating to the membership list; or a member’s subscription is three months out of time or in arrears and a Disciplinary Committee makes an order of termination (provided that membership shall be restored if the arrears are paid for the period to which the subscription is related) or a member is expelled from membership of the Party in accordance with the provisions of this Constitution. This is a very interesting section of the constitution which is worthy careful analysis.

Senator Mwonzora, Senator Komichi and Senator Mudzuri are on record saying the MDC Alliance is not a political party, but it is a group within the MDC-T, so by their own claim, anyone who belongs to the MDC Alliance automatically belongs to the MDC-T, so that person should still be dealt with at law as if they are a member of the MDC-T. What process was made to terminate the membership of those Senator Mwonzora recalled from Parliament? I would want to even believe that the papers they have submitted to the courts say the MDC Alliance is not a political Party, so when and where were legislators Prosper Mutseyami, Charlton Hwende, Thabita Khumalo and Lilian Timveous called for a disciplinary hearing that expelled them from the Party. If they said they are MDC Alliance, and the rule of law says the MDC Alliance is not a political party, they should at least must have been dragged before a disciplinary committee.

Section 5.11 of the Constitution says a member may be expelled if the National Council (by a two-thirds majority of all its members) is of the opinion that his or her continued membership would be seriously detrimental to the interests of the Party; provided that the member shall be notified in writing of the grounds on which the National Council is considering the termination of his or her membership and is given a fair opportunity to make representations in writing or in person to the National Council whereafter the National Council shall consider the member’s written or oral comments and respond to them before making their decision; or the Disciplinary Committee makes a ruling of expulsion in accordance with the provisions of this Constitution.

Section 5.12 states that any member who is expelled in terms of section 5.11(a) of this Constitution shall have a right of appeal to the Appeals Tribunal. Whilst waiting for the appeal to be heard, the member shall be on suspension.

In my view, supported by the provisions of the constitution quoted, Senator Mwonzora made a grave error in recalling the legislators, who, in my view, should be reinstated.

There is therefore need for an emergency Council meeting of the MDC-T 2014 structures as provided in Section of the Constitution which states that an emergency National Council Meeting may be convened on the basis of a petition signed by at least one third of the members of the National Council provided that at all material times only the President or any person specifically delegated in writing by him or her shall have the right at any time of convening a meeting of the National Council. This special National Council meeting should address all the irregularities that have taken place since the announcement of the Supreme Court judgement and map the way forward for the Extra Ordinary Congress.

And regarding the eligibility of the Whatsapp Council meeting help by the 2014 MDC-T faction aligned to Senator Mwonzora, Senator Komichi, Senator Mudzuri and Dr. Khupe, it is interesting to know if all members who are supposed to be part of the meeting were invited. As stipulated in Section 6.8.1 of the Constitution, there shall be thirteen Provinces of the Party; these shall be Manicaland, Mashonaland Central, Mashonaland East, Mashonaland West, Masvingo, Midlands, Matebeleland South, Matebeleland North, Bulawayo,Harare and South Africa, United Kingdom and United States of America External Assemblies. These provinces shall have equal rights, powers, privileges and obligations subject to this constitution. Could those who organised the whatsapp meeting confirm that all the provinces of the party were informed of this Council meeting which is alleged to have made the resolve to recall legislators without following the process of termination outlined in sections 5.10, 5.11 and 5.12 of the constitution. What we got to read in the media was that this meeting had 65 members who did not constitute a quorum, and that Hon Abedinico Bhebhe pulled out after hardliners in the faction allegedly pushed for the recall of more MDC Alliance legislators. So, this “council” meeting was being held after the first four legislators had already been recalled. At the same meeting, Hon Bhebhe is reported to have “queried why Chamisa and other MDC Alliance members were not invited as they were part of the 2014 structures that were legitimised by the Supreme Court ruling”.

Now, Senator Mwonzora and Senator Komichi have been going about saying the MDC-T Council meeting organized by the bigger faction which met at Harvest House on 21 May 2020 was not properly constituted. The explanation from those who met was that while they had invited Dr. Khupe, Senator Mwonzora and others as they were also part of the 2014 MDC-T Council members, the business of the day was not necessarily council business, but it is said two thirds of councilors can petition the standing committee to meet, so in my view the Standing Committee should meet as requested and deliberate on the issues that have to be deliberated on regarding the Supreme Court suggested Extra Ordinary Congress.

What I want to remind all the parties involved is that if any faction decides to call the other faction’s meetings improperly constituted, they should introspect and check for themselves if their own actions have been done in line with the provisions of the Constitution of the Party.

I really want the way Senator Mudzuri emphasizes the need for not pointing accusing fingers at each other, but work together mapping a way of implementing the Supreme Court ruling before it becomes water under the bridge.

On his part, Speaker of Parliament Advocate Jacob Mudenda, being a lawyer, should have known that the Supreme Court judgement gives room for failure of implementation of its suggestion as it gives 120 days for its implementation, failure which it becomes water under the bridge and the resurrected Party will die a natural death. He should have waited until all process are concluded. Furthermore, he is well aware that the there are two legally registered MDC factions which are registered as separate political parties. The Zimbabwe Elections Commission knew very well the origins of these parties at the time of registration and accepted them as is, and they are both legally registered as such. The only regal requirement to register a political party in Zimbabwe, and indeed in the majority of the countries in the world, is contesting elections, and for any credible court of law to rule against that could be inviting negative international attention which dents the credibility of Zimbabwe as a country. Already, with the Court in Malawi speaking against the Constitutional Court ruling on the 2018 Presidential challenge by Advocate Chamisa, we should expect a lot more criticism from other courts the world over, and the judgements that we expect the respective courts that are to decide on challenges that have been presented before regarding the recall of legislators is something worthy looking forward to.

Finally, I will reiterate the point that the MDC Alliance Agreement which I have heard Senators Mwonzora, Senator Komichi and Senator Mudzuri refer to, which according to Senator Mudzuri was signed by the late Dr. Tsvangirai, had become irrelevant by the time of the elections as evidenced by the fact that the individual parties did not maintain separate identities in Parliament, they did not elect separate chief whips, they did not make different caucuses, but they blended. The question where the new agreement is answered by the international stipulation that an agreement does not always have to be in writing.

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