A judgment delivered by a High Court judge, Justice Mushore has drawn a lot of attention and raised many questions among members of the public. Many are concerned to understand its meaning and implications. It is impossible to separate the legal and political aspects of the matter, given its broader consequences.
The case was brought in September 2018 by a member of the MDC who was effectively challenging the legality of the leadership of current MDC President, Nelson Chamisa. In doing so, the applicant challenged the appointment in 2016 of Chamisa and Elias Mudzuri as additional deputies to the then leader, Morgan Tsvangirai.
In her judgment, Justice Mushore ruled that those 2016 appointments were unlawful and secondly that the appointment of Chamisa was leader shortly after the death of Tsvangirai was also unlawful. The judge also ruled that all actions taken by Chamisa since he ascended to power in February 2018 are null and void. She also ordered that the party must hold an extraordinary congress.
The judgment is extraordinary in that it comes not just three years but many significant landmarks after the cause of complaint. In the majority of these years, the applicant had sat back and never challenged the legality of the 2016 appointments. In fact, a legal challenge had been made in 2016 and had been dismissed, a case which Justice Mushore tried hopelessly to distinguish when it was brought to her attention in the present matter.
The judgment is clearly a strike upon the legitimacy of Chamisa as leader of the opposition. Ironically this is the principal argument that Chamisa has advanced against his arch-rival Emmerson Mnangagwa, namely that his presidency of Zimbabwe lacks legitimacy. Politically, the judgment hurls the same weapon at Chamisa. It creates an equivalence between the two main political adversaries, each of whom will now wield the illegitimacy card against the other.
However, while the immediate focus is on legitimacy, the effect on the impending MDC Congress and the impact on elected MPs and Councillors, the most fundamental effect is that the judgment represents an existential threat upon the country’s main opposition, which has so far refused to budge to ruling party demands. It is a strategic and insidious assault on the very existence of the MDC led by Chamisa. In this regard, the judgment is of the type that one would find in the classic authoritarian ruler’s manual. Here, law and politics collide to produce a serious blow upon democracy.
To understand why the judgment is an existential threat upon the MDC as a political unit, it is important to examine the implications of the decision. The authoritarian playbook is not complicated but it nowadays more subtle than it used to be in the days of Stalin, Idi Amin or Hitler and Mussolini before them. These and other dictators of the old era were openly brutal.
The more recent crop is more deceptive and most people might be fooled into believing that everything is above board and in accordance with the law. The common denominator across generations of dictators is that they are all averse to the opposition and they are always seeking ways to stifle dissent.
Methods used to stifle the opposition include arrests for alleged legal transgressions, bribery and co-optation of the media, opposition politicians and business leaders who might finance the opposition. Influential voices who might cause trouble are bought off through offers of roles and positions in the establishment or licences for businesses and tenders. Key referees, such as judges and independent institutions with oversight roles may also be bought off or loyalists may be appointed to strategic roles.
All of this might even be done as part of so-called "progressive reforms" so that the majority of people would never see the reduction of democratic space and the capturing of referees and key voices.
These key referees become weapons both to defend authoritarian rulers against legal challenges and to attack the opposition, a point that is well captured by Levitsky and Ziblatt in their political bestseller How Democracies Die. They argue that while old-school dictators used crude methods including jailing and killing opponents, nowadays they try to hide behind “a veneer of legality” pretending to be acting according to the law. We have referred to this as “rule by law” in these pages, as a contrast to the substantive “rule of law”.
This is why the judiciary is a critical part of the authoritarian ruler’s machinery. Judges are generally regarded as legitimate arbiters between disputing parties. When people challenge judges’ decisions, they are regarded as petulant. Judges command respect and confer legitimacy to issues and leaders. But this is also where the danger lies because a compromised judiciary will give a misleading picture to outsiders. They will not easily see the subversion of democracy under the guise of judicial decision-making.
In short, the danger is that through a captured judiciary, an authoritarian regime can achieve its purpose to stifle and cripple the opposition very softly without even using politically-costly force. The irony is that those who complain about the conduct of the judiciary might even be accused of subverting the rule of law!
Levitsky and Ziblatt demonstrate how in 2011 Ecuadorian President Rafael Correa “masterfully” used the technique of using courts to sideline opposition media through massive libel lawsuits. This included a $40 million libel victory against a major newspaper which had described him as a dictator. He then appeared benevolent by pardoning the media company but the damage had already been done.
Similar techniques were used against the opposition in other authoritarian regimes resulting in the media self-censoring. In other countries, opposition parties have been saddled with huge legal bills, effectively bankrupting them. Opposition financiers have also been attacked with legal investigations into their tax and other affairs – all appearing perfectly legal but intended to cow them into submission.
This, therefore, is the political context in which the latest event in Zimbabwe ought to be read. The demise of democratic institutions does not happen overnight. It is more insidious and often has the veneer of legality. To read the latest judgment merely as a piece of some legal pronouncement by a judge outside the political context would be extremely naive. It is, as already stated, a calculated existential assault upon the country’s leading opposition because it goes to the core of its foundation.
By ordering the party to revert to the 2014 structures and consequently recognising Thokozani Khupe as the only legitimate Deputy President at the time of Tsvangirai’s death, it implies that she was the only legitimate successor pending an extraordinary congress. But this is long after the events and indeed, well after major landmark events that have since altered the political landscape. In doing so, the judge appears to have effectively (in retrospect) handed title and custodianship of the party to Khupe’s beleaguered faction. The judge has breathed some life into a party that has stunted politically.
Critics may dismiss this as irrelevant because, in any event, Khupe does not have popular support, as evidenced by her miserable performance in the 2018 national elections. They might also argue that in any event, the main party contested elections as the MDC Alliance, not the MDC. But focusing on popular support or the name would be missing the political point of what’s at play here. The authors of this latest move are not concerned with the issue of popular support. They know that Khupe does not have popular support. Instead, they are concerned with title to the party and legal implications that come with that title, in particular, party assets and resources. They are happy to foment chaos and confusion in the run-up to the MDC Congress, a fact that is completely missing from the judgment. This is why we argue that the judgment poses an existential threat to Zimbabwe’s main opposition.
These assets, which are important to the party, include ownership and custody of the Morgan Richard Tsvangirai House, the party headquarters in Harare and all other immovable and movable assets of the party across the country. They might also include political party funding that accrues to parties depending on their performance in national elections. The latter is more difficult however given that elected officials were elected under the MDC Alliance banner. The MDC led by Khupe which also contested separately cannot lawfully recall them from parliament. But with captured referees, nothing is guaranteed, hence the need for caution.
Abandoning the name MDC and claiming MDC Alliance might not be a clever idea if the party’s assets are in the name of the contested party. This is why the battle is set to continue. It is not about the people, but the lifeline of the party in terms of assets. The ruling party will be quite happy with an opposition that is financially crippled.
Mnangagwa has so far managed to capture and, is well on course, to co-opt most of the opposition apart from the MDC led by Chamisa. Events after the 2018 elections show that the Khupe faction of the MDC has long since found comfort and common ground with Mnangagwa and ZANU PF. They are no longer effective opposition adversaries to the government. Rather they have become partners and allies of the ruling party.
With that part of the opposition effectively captured by the ruling party, its control of party assets and related resources will nullify effective opposition in Zimbabwe. This is why the current point of assault is against the part of the opposition that is considered stubborn and unyielding. If it cannot be enticed into dialogue, the latest weapon is to strip it of its assets and leave it impecunious.
The judgment is appalling in many respects. It is an embarrassment to the legal and political system, especially when the regime wants to be taken seriously. Going against the opposition using captured referees is not so subtle anymore. For a judgment of its magnitude and implications, it is woefully devoid of depth and sound reasoning. It fails to consider the implications of the de facto conditions after all that has happened since the contested appointments in 2016 or the national elections in 2018.
The court did not even consider the fact that there is a congress duly scheduled to run later this month - which, if anything, will correct whatever defects might have been found in prior processes. After all, it is the party members, not the courts of law, who are entitled to make these determinations, including passing resolutions approving prior violations, if any. The court also fails to note that the faction led by Khupe, whom by implication it regards as the legitimate deputy, has already held its own congress. In that case, why then order an Extraordinary Congress when the party of the identified deputy has already performed the processes? It shows that the judge made a decision without a full and better understanding of the facts.
It is as if the matter was placed before a panel that was in outer space between 2016 and now and was for that reason completely oblivious of the actual realities obtaining here on earth. Non-lawyers often throw jabs at the profession and this case won’t help change attitudes.
This is one case in which the wheels of justice are so far behind the political realities that it leaves judges and the justice system looking utterly out of touch and the subject of ridicule by members of the public.
Courts should take a cue from their approach to the internal affairs of companies in corporate law, where they usually follow a rule of non-intervention unless there are very exceptional circumstances. Where internal violations in organisations can be solved by majorities, courts have generally tended to defer to companies to resolve their internal matters.
The fact of the matter is that the dispute which Justice Mushore purports to resolve had already been settled by the court of politics, the most significant instance of which was the 2018 elections. Both factions of the MDC contested and the results are there for all to see. The judge wants to rewrite this political outcome under the veneer of legality. Politically, it is an exercise in futility. But as already intimidated, this is not about the people. This is about decimating the main opposition by usurping its assets under the guise of legality.
Perhaps the most absurd part of the judgment is where Justice Mushore orders the MDC “to hold an Extra-ordinary Congress after the elapse of at least one month after the date of this Order”. This is meaningless because it places no limit whatsoever as to when that extraordinary congress must be held. To hold it “after” a month “after” the date of the order leaves it open-ended and means such a congress could be held even after 5 or 10 or more years! It would be different if the judge had said such a congress should be held within a particular period. But how do you even make such an order which is unlikely to be fulfilled, making the court look stupid?
It is trite that a court must make a decision that is capable of being enforced. As it is, the judge did not identify anyone in the so-called MDC with the duty to carry out the order. The judge had already identified that while named in the papers, Khupe had not participated in the proceedings. And how exactly is anyone going to call an Extraordinary Congress based on the 2014 structures when such structures have since changed in for and composition? How do you call on structures that you do not command? It is a judgment that has very little prospects, if any, of being enforced and it is a wonder that the judge thought it was wise to make such an order. What is likely to happen is that the MDC led by Chamisa is likely to go ahead with its Congress, which they are perfectly entitled to do.
It is, by all accounts, an unsound judgment that is out of sync with political reality but one with deep political implications and it has to be challenged both legally and politically. It could bankrupt the main opposition and kill whatever remains of Zimbabwe’s democratic space. The judge's attempt to turn back the clock are unlikely to succeed. The law, it seems, has been outpaced by the politics. Those claiming victory might be left with pieces of paper, but without the people whose support is the primary currency of politics.