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Big Saturday Read: The day after Tsvangirai

February 23, 2018

 

 

The death of Morgan Tsvangirai, the iconic leader of the Movement for Democratic Change for nearly two decades has shaken its foundations to the core and if it’s not properly handled, it could easily collapse after the next election especially if performs poorly in the next elections. Although Tsvangirai was ill for some time and while it had become evident that he was no longer in a position to continue, the party was in denial and therefore severely under-prepared for his demise. In his final days, when death was imminent, the party found itself flailing, as potential successors fought publicly to position themselves favourably to succeed him. Without the man who held the different parts together, the party faces a serious crisis of survival. 


The intense power struggles have been an unedifying spectacle. With the eyes of the nation, and indeed many around the world focusing on the hero’s funeral and celebrating his legacy, party leaders saw it as an opportunity to advance their political fortunes. They saw gaps in the tragedy of Tsvangirai’s passing. There were scenes of a violent nature as hordes of youths accosted some of the leaders, threatening to beat them up and burn them alive in a hut – all this at the leader’s funeral. 


For years, everyone, including political actors within the MDC, had focussed on the succession battles in ZANU PF and many feared what would happen if Mugabe died in office. No-one had anticipated what would happen should the hand of death visit the MDC. As it happened, ZANU PF had resolved its succession battle, albeit by means of force, effectively pushing Mugabe out of power last November. This forestalled the likely chaos that was predicted if Mugabe had suddenly died in office. By contrast, the MDC never prepared for the day after Tsvangirai, even though everyone was aware of the leader’s illness. Fearing backlash if they tied to talk succession, everyone pretended to put their ambitions on hold while waiting, like vultures, for Tsvangirai to die. Others manoeuvred into strong positions as soon as it became clear that the leader had reached a point of no return. 


Pains of transition


What is happening within the MDC is a reflection of the pains of transition. It was never going to be easy to transit from the reign of its founding leader Tsvangirai to a new era under his successor. The pain of transition is characterised by both law and politics, with a collision between principle and expediency and between popular will and legality. The party was reckless however not to attend to its constitution, which is farcical.  


The current situation would have been an easier affair if the party had a clear constitution. However, the current constitution is incomplete, vague and elusive. Any constitution of a half-decent organisation would have succession clauses, namely, provisions that deal with what happens when a leader dies or resigns. The MDC constitution has such a clause, but it does not reflect the organisational realities of the party, making it redundant. 


According to Article 9.21.1 of the party constitution, where the President dies or resigns, the Deputy President assumes the role of Acting President, pending the holding of an Extraordinary Congress which must be held within a year of the death or resignation. This would be a simple affair if the party had a single deputy president. However, at the time of Tsvangirai’s death, the party had three deputy presidents: Thokozani Khupe, Nelson Chamisa and Elias Mudzuri. Khupe was elected at the 2014 Congress while the other two were appointed in 2016. Who among the three deputies was supposed to take over as Acting President pending an Extraordinary Congress to choose a new president? Each of the three has, for different reasons, been laying a claim to be the Acting President. Khupe says she is the elected deputy president. Chamisa says he was appointed by the National Council after Tsvangirai’s death. Mudzuri claims he was the Acting President at the time of Tsvangirai’s death. 


Khupe’s claim can only be sustained if it is held that the appointments of Chamisa and Mudzuri in 2016 were declared to be constitutionally invalid. This would leave her as the only deputy. The argument is not without merit since there is no evidence that the amendments of the constitution to accommodate two more deputies was approved by Congress as required by Article 17 of the Constitution. It leaves the legality of the National Council decision to approve the appointments in serious doubt. However, this challenge over the legality of the VP appointments would be hard to sustain when it seems, to all intents and purposes, to have been accepted directly and indirectly, for the better part of two years. A legal challenge brought by a member did not go far and was not pursued. Indeed, everyone accepts that they are deputies.


If the appointments are held to be valid, then the party has three deputies and the question remains as to who among those three took over constitutionally when the President died. The fact of the matter is that there is no specific constitutional provision that directly addresses that particular situation since Article 9.21.1 deals with a situation where there is only one deputy president. It constitutes a lacuna in the MDC Constitution. To understand the gap, consider how the situation is dealt with under the national constitution. The national constitution provides that the deputy who last acted when the President was absent becomes Acting President if the President dies or resigns. If this clause was part of the MDC Constitution, the question would be decided by identifying who was the last Acting President before Tsvangirai died. In that case, it would be necessary to settle the dispute between Chamisa and Mudzuri. However, there is no such clause and it does not apply. 


How then is the question to be decided? Does this mean there was a constitutional vacuum when Tsvangirai died? One way to resolve it would be to improvise by considering how the Acting Presidency was allocated before Tsvangirai’s death. The situation was regulated by Article 9.2.1(b) of the party Constitution, which provides that it is the duty of the deputy president to act on behalf of the president whenever the President is absent from Zimbabwe or is for any reason unable to perform his or her powers, functions or administrative duties. This clause was not changed despite the fact that the party now had three, rather than one deputy president. Instead, Tsvangirai appointed an Acting President from among his deputies and he seemed to be adopting a rotational system. Khupe was appointed Acting President sometime in 2017. In January 2018, he appointed Mudzuri. A dispute arose in early February, a week before Tsvangirai’s death, when Chamisa claimed to have been appointed Acting President. This dispute, which is a matter of fact, subsisted at the time of Tsvangirai’s death. 


However, there is another provision which could have been used to deal with the uncertainty. This is Article 9.31(a) which provides as one of the duties of the National Chairperson “to perform the duties of the President’s office in the event that both the President and Deputy President are unable to perform the functions of the President’s office”. The president cannot perform his functions because he is deceased. There is no clarity over the identity of the Deputy President, there being three of them, each with a claim but there being no provision to determine who assumes the role of Acting President. It could be argued, therefore, that the deputy president is also unable to perform his/her functions. In this situation, the National Chairperson could easily fill in using Article 9.31(a) but only temporarily while he prepares the party for an Extraordinary Congress. This, in my view, is one practicable and constitutional way to resolve this messy situation. It does not involve making up or bending the rules, as would arguably be the case if other routes are used. 


Nevertheless, as I have said elsewhere, at the end of the day, the leadership question is a political matter which must be resolved politically. The matter has therefore been contested politically rather than constitutionally. The constitution only features to legitimate the political claims to power. Courts of law are often reluctant to interfere in affairs of membership-based organisations which can resolve the issues through majority decisions unless there is clear evidence of prejudice and oppression against minorities. What is the point of a court of law making a legal decision which can be promptly nullified by a majority decision of the organisation? It is to how these games of power have played out in the court of politics that I now turn.   


Games of power: Blitzkrieg strategy


What I have discussed above is the law. But what is clear is that this is yet another instance where the law collides with the politics. The law is not being used to regulate succession. Rather, the law is being used to justify succession. The fact of the matter is that there is a serious contestation for political power and here it is political considerations, rather than legal niceties that are more influential. From the beginning, it was clear that power was more likely to fall to whoever was able to assert and demonstrate it ahead of rivals. In this broad scheme of things, the law is no more than an instrument to justify power rather than to control and regulate it. 


In this regard, Chamisa seems to have made the swiftest and most ruthless political manoeuvres ahead of rival claimants to the throne. When the history of this episode is written it will be clearer with the benefit of hindsight that it was a ruthlessly executed power grab based on the blitzkrieg strategy. Tsvangirai’s demise was imminent, and unless he positioned himself strategically, he would have played second-fiddle to rival claimants. Although there was a claim that he had been appointed Acting President in the days immediately preceding Tsvangirai’s death, he knew this claim was tenuous and insecure. He needed to strengthen his claim to power, which explains the role of the National Council, which “appointed” him as Acting President the day after Tsvangirai’s death. 
 

The first move was to call a Standing Committee meeting a day before Tsvangirai died. This was the first important assertion of authority as attendance by a majority of the Standing Committee members meant his authority was being acknowledged. This was to be followed by the National Executive and Council two days later which would be his crowning glory. However, Tsvangirai beat them to it as he died on the eve of the meetings. This did not stop the meetings – it only made them more necessary. Its political significance was strengthened by the fact that another claimant, Mudzuri had also called a meeting at Tsvangirai’s home to make arrangements for the funeral. The majority chose to attend the meetings at the party headquarters, which suggested that the force was with Chamisa. 


Chamisa’s political manoeuvring in the days before and after Tsvangirai’s death has been praised in some quarters but criticised by others. His critics argue that it was a shameless power grab which was disrespectful of Tsvangirai who had just died. They have been particularly critical of the political meetings held on the day after Tsvangirai’s death which were designed to confer power to Chamisa. They argue that Chamisa was too hasty and unnecessarily impatient and greedy at a time when the party was in mourning. For his supporters, though, his political moves were the stuff of political genius. He did what was necessary to fill “a political vacuum”, they argue. Power is not handed over on a silver platter, rather, it is claimed, it what Chamisa did they say, in justification of the moves. They also argue that his bold moves helped clear a situation that was engulfed by a fog of uncertainty. He took charge and that is what leaders do, they also say. 


From a strategic point of view, Chamisa’s move can be characterised as a blitzkrieg against his rivals. On the blitzkrieg strategy, Robert Greene, author of 33 Strategies of War writes, “In a world in which many people are indecisive and overly cautious, the use of speed will bring you untold power. Striking first, before your opponents have time to think or prepare, will make them emotional, unbalanced and prone to error”. When Chamisa moved swiftly to claim power within the MDC, his rivals were caught unawares. They were focusing on Tsvangirai’s funeral.  


This cold, cunning and calculated approach by Chamisa was heavily criticised by those who thought it was uncultural and disrespectful to play politics during a period of mourning. But it was effective in that it gave him authority ahead of rivals who were left to reclaim lost ground. After dominating the public gatherings that rallied around Tsvangirai’s funeral, Chamisa became the face of the party leadership. However, although it gave Chamisa effective control of the party, it also came at some expense. For a start, it strengthened the level of resentment from old rivals. There was something Machiavellian about the approach which caused deep resentment, even among neutrals. More importantly, since it stretched the constitution, raising concerns over the party’s commitment to constitutionalism, one of its flagship principles.


For years, the MDC has criticised ZANU PF for its scant regard to the constitution. How does a party that prides itself as a defender of constitutionalism condone breaches of its own constitution?  The narrative as to what happened before Tsvangirai’s death is shrouded in doubt, with claims that there were misrepresentations. The idea that the MDC has run roughshod over its own constitution diminishes its moral authority as a defender of constitutionalism. 


Majoritarianism and Legality


The succession problem in the MDC is a reflection of collision between majoritarianism and constitutionality or legality. There are two schools of thought, each revolving around preferred individuals. 


Legality


The first is the school of thought that prioritises constitutionality and legality. According to this view, constitutional provisions must be followed to the letter. Since the MDC is built on the foundation of respect for the constitution and the rule of law, it must, therefore, lead by example and ensure that the constitution is followed. The problem with this school of thought is that any legal victory would be Pyrrhic in the sense that a candidate who prevails on account of legal backing but without popular support would be standing on very weak ground politically. One might win in the court of law but without much to count on in the court of politics. 


The other problem, as we have observed, is that the constitution itself is both incomplete and unclear in critical parts, which makes it hard to implement without conflicts. The easiest way to carry the legal argument would be a declaration that the appointment of two deputies in 2016 was constitutionally invalid. This would leave the party with only one deputy, who would then, without question, assume the role of Acting President. We have already seen why this could fail given the time that has elapsed since their appointment and the fact that they have since been accepted into their roles as legitimate deputies. It is a heavy indictment against the MDC that a party which is supposed to lead on constitutionalism has such an incomplete and vague constitution to govern its affairs. The constitution should have been realigned with the political realities after the appointment of two extra deputies. 
 

Popular will


The second school of thought prioritises the popular will (majoritarianism) on the ground that it is both democratic and makes political sense. The party must do what the people want, so goes the argument. According to this school of thought, legality matters but only to the extent that it reaffirms the position of the popular candidate. It is vacuous if the law prevents the popular will from prevailing. The net effect of this view is that whatever the circumstances, the constitution should not be allowed to stand in the way of the popular candidate. 


The problem with this school of thought is that it grossly subordinates the constitution to the idea of the popular will, even conjectural popular will. In this regard, it seems to undermine the very foundations upon which the party is built. It may advance the so-called popular choice but it also sets a very dangerous precedent, which, given that history often repeats itself, could come back to haunt the current beneficiary. More worryingly, the so-called popular will can easily descend into mob rule, a phenomenon of direct democracy which Plato warned against centuries ago. According to philosopher A.C. Grayling, Churchill once remarked that “the strongest argument against democracy is a few minutes’ conversation with any voter”. Implicit in this remark was the fear that it would reveal “the ignorance, self-interest, short-termism and prejudice typical of too many voters”. It speaks to the fear of trusting the so-called majority in the absence of checks and balances. 


The point here is that while the authority of the majority as the source of political authority is undeniably powerful, the danger that this could collapse into mob rule must be noted and guarded against. As Grayling puts it, it represents the dilemma of democracy. The constitution is one mechanism that can act as a safeguard against collapse into mob rule because it contains values and principles and sets the rules that the political entity must follow. These checks and balances are important. The constitution must, therefore, be protected from the mob, however large it may be.  The constitution is at its most vulnerable when faced not by dictators but by a mob which commands numbers. Dictators can be easily condemned and the illegitimacy of their acts is easy to identify. Mob rule – popular will - on the other hand, can easily pass for democracy and is harder to counter. 


The other problem with the popular will school of thought is that if it trumps the constitution, it deprives the party of the moral authority to challenge rivals like ZANU PF of violating the constitution. How does it become the paragon of constitutionalism when it cannot comply with its own constitution because it is inconvenient? 


Looking at these schools of thought, both have their merits but as we have seen, they also have serious weaknesses. Legality must not be inconsistent with the political interests of the party, but at the same time, the popular will must not descend into mob rule. It is also worth noting that despite the polarisation, the positions are not mutually exclusive. In other words, it is not impossible to reconcile the two schools of thought. Thus, it is quite possible to have the popular will reaffirmed through constitutional means. This is where the party processes of choosing leaders come in. It was the wisdom of the framers of the party constitution that, in the event of death or resignation, a successor must be elected by an Extraordinary Congress – this would both be legal and produce a popularly-elected candidate. 


However, the framers did not anticipate a situation where a president dies just months before a national election. If they did, they would have provided for shorter time-frames, rather than a year, within which to hold an Extraordinary Congress to choose a new leader. An Acting Leader should never be in position for up to a year. It’s simply too long, given the contestations that we are now witnessing. They should have made special provisions to deal with such a scenario as the party faces presently.


Since the president has died a few months before the election is due to be held and there is need to select a popular candidate but within the confines of the law, it falls to the party to take a pragmatic and flexible route to achieving both goals. The Constitution is not a rigid instrument which leads to illogical and politically damaging results for the organisation. The MDC is an organisation whose primary business is to win elections and to take power. There is an election looming and what the party does now must be guided by its electoral interests. It must have a candidate who stands the greatest chance of winning the election and to advance its political interests. But it must also preserve other key elements, such as party unity, which is necessary going into a crucial election. Leaders who are contesting for power must appreciate that there can only be one candidate, but that the unit is greater than any single individual’s interests. One of them must lead and the others must work with the leader. 


The succession issue must be cured through both political and constitutional processes. The constitutionally mandated process of choosing a leader in the MDC is through an Extraordinary Congress. This would be the most ideal process, a necessary element to secure legitimacy. There can’t be anything better and more secure for a leader going into an election than being popularly chosen in accordance with legitimate party processes. It reconciles both the constitutionality and popular will schools of thought, ensuring the party goes into an election with a candidate whose legitimacy is not contested.

 

However, since we have already observed that the constitution is incomplete and vague, as an organisation, the party has inherent power to regulate its own processes, as long as it follows the democratic path, taking into account the extraordinary circumstances. It must do so in a manner that advances its political interests – choosing the right candidate for the elections but also ensuring that the disgruntled are not left behind. There is a time for sulking but there must also be a time for reconciliation so that the primary goal that brought them together in the first place is not lost. Someone asked me what's happening in the MDC. The answer was simple: It is politics that's happening. 


waMagaisa  
 
wamagaisa@gmail.com 

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