A tree in the forest
The last BSR which critically analysed the Supreme Court judgement in the matter concerning the MDC-T concluded with a warning framed in metaphorical terms. The warning was that those concerned should not to miss the forest for the trees. The other way to put it is that one must have a broader view of issues and must not be detained by details of the specific legal dispute. In this framework, the Supreme Court judgment is merely one of the trees in the forest. In other words, if you focus solely on that judgment, there is a risk of missing the bigger picture of the political landscape in which it is located.
A more modern metaphor of this approach is to frame it as a “drone view” of the political landscape. A picture taken by a drone provides a wholesome account of the landscape compared to a view taken from a position on the ground, which tends to amplify closer features. The purpose of this BSR is to provide this big picture analysis. It examines the role of the various political actors that are directly and indirectly involved in the matter. This examination tries to shed light on the political dynamics at play and may shape how decision-makers might respond to these developments.
The BSR ends with an intriguing moral dilemma, which is intended to provoke deep thought among those who are concerned with the fate of the opposition party and opposition politics more generally because this moment could be pivotal in the trajectory of Zimbabwean politics. Depending on how the key actors respond to it, it might turn out to be a critical juncture in the history of ruling party-opposition relations. Finally, the BSR does not seek to tell people what to do. It does, however, attempt to provide tools to help them make informed decisions, fully appreciating the political ramifications.
The Enforcement Puzzle
However, before taking a drone view of the political landscape, a point made in the last BSR needs some amplification for purposes of clarity. It concerned the mootness of the matter and that those ordered to convene an Extraordinary Congress face an almost impossible task both in terms of the law and in practice.
At law, an Extraordinary Congress must be convened in cooperation with other organs of the party. Key organs include the National Council and the provincial structures. These organs and the Congress itself must constitute a quorum (minimum number of members) for their meetings and decisions to be valid. A two-thirds majority of members is the quorum for a Congress. As eloquently explained by Professor Welshman Ncube in an interview during the week, it is the National Council that sends the notice of an Extraordinary Congress to the provincial structures. These are the minimum legal requirements which those raising the banner of constitutionalism cannot ignore.
However, as explained in an opinion this week by the MDC Alliance’s Secretary for Legal Affairs, Innocent Gonese, the terms of the National Council elected at the 2014 Congress and provincial structures expired by operation of law at the end of their terms in October 2019. In short, these organs no longer exist. Proponents of constitutionalism cannot ignore this fact. The Supreme Court judgment did not extend the terms of office of these organs or revive them. It was not asked to do so and in any event, it did not have the power to amend the party’s constitution.
If Thokozani Khupe or Morgan Komichi wish to convene an Extraordinary Congress, they have to face the fact that legally the organs they must work with no longer exist at law. The Supreme Court gave them guns but they have blank bullets. The extension of the organs’ term limits cannot be implied. It has to be specifically ordered. They may have to approach the courts for an order. Whether the court has the power to make such orders is a question that would have to be confronted if the matter comes to court.
This is why the BSR last week gave the example of a schoolboy who challenges a decision of a school but the matter comes before the court long after he has graduated. At that point, the decision would be irrelevant to him because he is no longer a student. Such a matter is regarded as moot. Likewise, a decision that comes long after the expiry of the term limits is too late and has become academic. The Supreme Court should, for the avoidance of doubt, have addressed the expiry of the organs’ terms in its judgment instead of leaving things open to all manner of interpretations.
Freedom to disassociate is a constitutional right
Apart from the legal complication, there is also the practical issue of summoning members of the National Council and provincial structures to attend their meetings and Congress. Given the passage of time and the occurrence of multiple events that have changed many things in the intervening period, it will not be easy to make a quorum for purposes of carrying out valid decisions. A majority of members are now part of the MDC Alliance which they regard to be a distinct political entity; others have moved on with their careers; while others are deceased or retired.
In any event, members have freedom of association, which is protected by the national constitution. This means they cannot be forced to associate with persons that they do not want to associate with. The court does not have the power to force them to associate with them. Surely, even those holding the banner of constitutionalism cannot avoid this constitutional right and reality. Khupe, Komichi and their associates are holding an order of the Supreme Court, but that order does not entitle them to demand or force association with people who are not interested in associating with them. This is the cold, hard and grim political reality that not even a court of law or coercive instrument of the state can control.
In short, those holding on to the Supreme Court decision must face the legal fact that the organs’ term of office expired in 2019 and in any event, they have no power to force association with people who no longer want to associate with them. In the latter case, they have to work on convincing a majority of current MDC Alliance members who used to be with the MDC-T to return to that party and associate with them. MDC critics call it “populism” but freedom to disassociate individually or in large numbers is a constitutional right.
The art of lawfare - law as a political instrument
Having dealt with this legal aspect of enforcement, let us move on to look at the bigger picture of the political landscape and consider the political dynamics concerning the judgment. What is going on politically and where does this judgment sit in the Zimbabwean political maelstrom? To understand the place of the judgment it’s important to draw on the concept of lawfare as a political strategy in domestic politics within an authoritarian context.
As a concept, lawfare is usually used to describe ways by which a state uses or misuses the law as an alternative to traditional military mechanisms of war. It was given popularity in a 2001 paper by General Charles J. Dunlap Jr although it has older origins. In this paper, the concept is adapted with modifications to refer to how the law is used or misused by both state and non-state actors as a political strategy within an authoritarian context to achieve specific political objectives. In this context, the authoritarian state and associated parties weaponise the law and legal institutions intending to weaken or annihilate the opposition and creating a monopoly of power by the ruling party.
When deployed in this way, lawfare has an insidious and devastating effect and is far cheaper than the use of violence or other coercive instruments of the state which easily attract revulsion. Besides, use of the legal instruments as weapons provides the authoritarian regime with a veneer of legality whilst still pursuing its political objective to subdue the opponent. It does so in a way that violence can never achieve. It creates a strange situation where an authoritarian regime and its intellectual defenders turn arguments that are often relied upon by the opposition against them. Thus, the opposition which justifiably criticises the regime of violating the rule of law will find itself facing accusations of violating the rule of law - even when it is clear that the legal instrument used is indefensible or the justice system is notoriously biased.
Using the lawfare strategy, opposition leaders and activists are arrested and detained on spurious and trumped-up charges. Zimbabwe has scores of opposition politicians and activists charged with threatening to overthrow the government. Oft-times the cases don’t go far in the justice system. However, the arrests, detentions and trials serve several purposes. These purposes include harassment of opponents, wasting opposition time and diversion of resources, intimidating opposition leaders and activists, punishing opponents by detaining them in filthy and inhumane remand cells, and generally mentally draining the opposition.
Occasionally, there is an acquittal of an opposition politician, as happened in the case concerning Job Sikhala, but true to form, this circumstance is immediately hailed by the regime and its supporters as signifying the rule of law and the independence of the judiciary. The reality is the case should never have been brought to court in the first place and the occasional acquittals serve to reinforce the charade of weaponisation of the law. Many people did not notice it but on the same day that the Supreme Court delivered the much-debated judgment concerning the MDC, the Constitutional Court also delivered a judgment in which it nullified Constitutional Amendment No. 1, passed 3 years ago on account of procedural irregularities. Although it was hailed as a victory, and it did set a good precedent, it was a flawed decision because the court made an incompetent order.
Sometimes the regime might even sponsor or encourage legal disputes within the opposition when they emerge. More significantly, political referees such as police investigators, prosecutors and judges may play partisan roles in lawfare through the selective and unfair application of the law. This would mean that rules that apply to and against the opposition may not be applied by the same referees to or against the ruling party, even in similar circumstances.
The BSR last week demonstrated the weaponisation of law by showing the stark difference between the Mashavira case and the Bhasikiti case which came before the courts in 2015. In the Bhasikiti case, both the High Court and the Supreme Court dismissed his case because he should have exhausted internal remedies in ZANU PF. By contrast, the Supreme Court held that there was no need for Mashavira to exhaust internal remedies in the MDC-T. It is such clear differences in the courts’ treatment of similar cases involving the ruling party and the opposition that propel the view that the law and the judiciary are weaponised in the art of lawfare by the ruling party.
The last BSR also demonstrated how, if the Supreme Court had followed the logical path of the famous Madzimbamuto case which it referred to, it would have come to the Ndhlovu case which made it clear that a previously unlawful ascendancy to power can become lawful under the principle of effective control, which fact Judge Patel had already established. The omission raises serious questions over the court’s role in the matter.
The timing of the controversial judgment during the COVID-19 lockdown also raised legitimate suspicions that it was politically contrived. There was no urgency to a matter that had taken years to come before the court. Such an important matter threatening the existential threat to the country’s main opposition was bound to attract much attention and create an unnecessary diversion from a pandemic that poses an existential threat to humanity.
It is on this account that what may seem to be a genuine dispute between opposition factions becomes implicated as part of lawfare between a ruling party and the opposition. Inevitably, when one of the opposition factions involved becomes the recipient of applause by the ruling party and its propaganda media, members of the opposition are bound to raise eyebrows. This is because the ruling party and the propaganda machinery are known for their vitriolic treatment of the MDC Alliance.
The irony is that ZANU PF’s and its propaganda media’s excitement over the judgment and their zeal to support Khupe, Komichi and their associates is the proverbial kiss of death. Being accustomed to regular doses of vitriol against the MDC, opposition supporters are highly suspicious when overnight some of their leaders become darlings of the ruling party and its propaganda media. Opposition supporters are mindful of the proverbial wisdom of the hare, who, legend says, is suspicious when the crocodile offers it a lift to cross a flooded river.
Therefore, while the case might have emanated from a leadership dispute between MDC politicians, to focus on it as a simple legal contestation between party factions would be a display of gross political naivety.
The stone in the shoe
Politically, Nelson Chamisa and the MDC Alliance are the proverbial stone in Emmerson Mnangagwa’s and ZANU PF’s shoe. He has so far rejected co-optation by the regime, frustrating a political strategy that is favoured by authoritarian regimes. By contrast, Thokozani Khupe is working closely with the regime. The two opposition leaders are poles apart in their current relationship with ZANU PF. Perhaps the best point of distinction is the Political Actors Dialogue (POLAD) process, Mnangagwa’s brainchild through which a collection of minor opposition parties interact with the ZANU PF government. Whereas Chamisa and the MDC Alliance have emphatically rejected it, Khupe and her MDC-T have embraced it with great enthusiasm. Between the two, one has chosen resistance while the other has taken the path of appeasement and enablement.
Diluting the legitimacy question
For ZANU PF, the judgment for Khupe and her party is a handy opportunity if it weakens Chamisa. If MDC members somehow fall for it and decide to walk with Khupe, the troublesome stone would have been removed from Mnangagwa’s shoe without much effort. Mnangagwa and his supporters also believe the judgment helps to dilute Chamisa’s and the MDC Alliance’s challenge against Mnangagwa’s legitimacy. They have, since the 2018 elections, challenged Mnangagwa’s legitimacy arguing that he used foul means to come to power. Mnangagwa and his supporters now argue that they have no moral authority to accuse them of illegitimacy.
But this is why it has always been important for Chamisa and the MDC Alliance to broaden the scope of challenging Mnangagwa beyond the issue of input legitimacy. Previous BSRs have explained that legitimacy comes in different forms - input (entry) legitimacy and output (performance) legitimacy: if the issue of input legitimacy is now water under the bridge, the issue of performance legitimacy is still very much alive and relevant. The government’s role during the on-going COVID19 pandemic is an example of an area where the opposition should be challenging the regime’s performance legitimacy.
Not just a game of numbers
If you are Mnangagwa or a ZANU PF supporter and you have to select a competitor between someone who got over 2 million votes and another who harvested a mere 45,000 votes in the same election, the choice is obvious. On the other hand, if you are an opposition supporter and you have a choice between the same two leaders, the choice is plain. Critics will quibble that this is populism, but this is merely a dirty label for the principle of majority rule, perhaps the foremost tenet of democracy. It’s politics and in a democracy, winners are decided by numbers.
Nevertheless, to reduce the issue to just a game of numbers would be too simplistic. The average MDC supporter does not just consider who is popular. They also consider what they represent and in particular, the relationship of their leaders to ZANU PF. The point has already been made that the moment an MDC leader is associated with ZANU PF, it’s a huge burden to carry. The fact that Khupe is already running with ZANU PF is a severe point of disadvantage in the eyes of MDC Alliance supporters.
Khupe might have been in a stronger position if she had remained steadfast in her political strategy of resistance to ZANU PF while insisting on her heirship to Tsvangirai’s leadership. She compromised herself by competing against and mocking the MDC Alliance. This was made worse by joining POLAD to become the face of appeasement and enablement after the atrocities committed by the regime in August 2018 and January 2019. Those who are joining her from the MDC Alliance will also suffer the same fate. It boggles the mind that they do not feel the weight of this political liability.
No one has the moral high ground
An attempt has been made to present one faction as having the moral high ground over the other. This is framed as pitting one side as fighting for constitutionalism and the other as trashing it thus creating a binary of constitutionalists and anti-constitutionalists. This is a myopic framing of actors and politics of the MDC. The truth is that considering the history of the party, none of the political actors can claim the moral high ground over the others. Indeed, some of those being accused of being anti-constitutionalists today have tried in vain in the past to defend the constitution and guess who opposed them? The same people who today claim to be champions of the constitution!
Take the 2005 split which was sparked by a dispute over the use of presidential powers before the Senate elections. Khupe and Komichi were foremost in standing with former leader Morgan Tsvangirai’s political decision notwithstanding the legal questions around it. When the 2016 appointments were made, none of those claiming to be constitutionalists dared to go to court to challenge the decision. Instead, they played along for years and some even contested the 2019 MDC Congress. Would they be fighting today if they had been elected? For her part, Khupe reportedly boycotted party meetings at MRT House even though the constitution required her to attend. These are hardly the actions of staunch constitutionalists.
The truth is given the murky history in which all the current actors are implicated, the notion that there are constitutionalists fighting for constitutionalism is misleading, self-serving and convenient only in the service of personal political ambitions. This is not the time for politics of "if i can't have it, you can't have it, too". There is time enough for most of the current crop of leaders to get their chance in future. Politically, all of the current crop of MDC leaders are young enough.
Path to a modern-day Internal Settlement?
So what is the end game of these political machinations? Critics will argue that this is purely an MDC dispute and the ZANU PF regime has nothing to do with it. Indeed, the dispute was internally generated within the MDC political family. However, it would be naive to imagine that ZANU PF has not taken an interest in it given the impact that the matter has on its main opponents, Chamisa and the MDC Alliance. If they had no role in generating the conflict, they have certainly shown sufficient interest in the outcome that weakens the main opposition. It presents opportunities, not least to deploy a strategy of divide and rule by supporting one side at the expense of another. The support could be moral but it could also be expressed in pecuniary terms and through the use of coercive apparatus of the state.
Life after the coup has not gone according to plan for Mnangagwa and ZANU PF. The controversial elections in 2018 produced a tainted victory. The use of violence by the military damaged an already fragile reputation. The idea of a Government of National Unity has been whispered but there is an almost obsessive revulsion towards Chamisa. Khupe on her own is not a viable partner given that she controls a very small amount of political capital. The party has just two seats in parliament, a small and insignificant dot on the political map. But the thinking is that this could change significantly if Khupe’s MDC-T could be merged with the MDC Alliance, having wrestled it from Chamisa. With former MDC Alliance figures joining up with Khupe and creating a new opposition, that might open up a new front for a GNU with MDC “moderates”.
For their part, those leaving Chamisa and the MDC Alliance are well aware of their limitations on the electoral front, unless they suffer delusions of grandeur. They ought to know that under present conditions they cannot possibly win a popularity contest against Chamisa. Their best bet is to get a small chunk of the party, along with control of assets and enter into “dialogue” with ZANU PF to form a GNU. Leading members of the group have previously urged dialogue with ZANU PF. This will be presented as a respite for the long-suffering people of Zimbabwe. The “maturity card” will be presented as a point of distinction between the Chamisa-led MDC Alliance and the Khupe MDC-T. ZANU PF will even start lauding the MDC-T as a mature opposition. While it will be presented as a compromise designed to serve the people, it will, in reality, be a relief for ZANU PF and an opportunity for the former opposition members to join the gravy train. ZANU PF would have achieved what it has always desired: submission of the opposition.
Zimbabwe’s recent history has examples of situations in which the ruling party has co-existed with the opposition in the same government. However, the circumstances which led to the ruling party and opposition working together have not been the same at all times. The 1987 Unity Accord between ZANU PF and PF ZAPU was a necessary pact forced by genocidal circumstances engineered by the government against the people of Matebeleland and the Midlands regions. The 2008 Global Political Agreement between ZANU PF and the two MDC formations was forced by an inconclusive, rigged and violent election which created a major political impasse. In both cases, the opposition leaders, Joshua Nkomo and Morgan Tsvangirai were in command of the most significant opposition parties and the decision was necessitated by dire circumstances.
By contrast, in 1978, Ian Smith entered into a pact, known as the Internal Settlement, with Bishop Abel Muzorewa, Reverend Ndabaningi Sithole and Chief Chirau. The political arrangement was presented as delivering black majority rule. However, it was no more than a facade which preserved white minority rule. Ian Smith had managed to coax the three leaders who purported to represent the black majority. As Prime Minister, Muzorewa was no more than a puppet in the hands of a crafty puppeteer.
Unsurprisingly, this fraudulent political arrangement failed to gain traction locally, regionally and internationally. Noone outside its authors and their supporters and sympathisers believed in it. It was incomplete without the two major liberation parties, ZANU and ZAPU (the Patriotic Front) which were waging a guerilla war against the Smith regime and were therefore collectively the main opposition. The Internal Settlement could not stop the guerilla war and on that account alone it was an exercise in futility. Without local and international acceptance, the Internal Settlement was not worth the paper it was printed on. This is why it was a short-lived political arrangement which was soon superseded by the outcome of the Lancaster House Constitutional Conference which included the Patriotic Front.
If ZANU PF were to go into a political arrangement with the new formation of the MDC minus Chamisa and the MDC Alliance, it would be creating its version of the Internal Settlement. It would be trying to do what Smith tried and failed: to buy legitimacy and acceptance by cherry-picking from the opposition pool, by choosing the most pliable members and hoping to sideline and weaken the more popular and toughest members of the opposition. But if the Patriotic Front, their supporters and the international community knew that the Internal Settlement was a fraud, there is no reason to believe that the MDC Alliance, their supporters and the international community won’t see that the new Internal Settlement is a ruse.
POLAD hasn’t worked out quite well because it does not include the biggest opposition leader and party. Even Mnangagwa knows it’s a group of desperate politicians who command no significant clout among the people. Adding a few more politicians defecting from the MDC Alliance is not going to give POLAD or any alternative arrangement any more credibility. If anything, it will simply discredit the platform as a bunch of anti-MDC Alliance politicians who are trying desperately to cosy up to the regime while united by their disdain towards Chamisa and his colleagues.
For those who are ditching the MDC Alliance for a potential seat on the gravy train, Muzorewa’s fate is instructive. Despite having a vast amount of resources and support from the then ruling establishment, Muzorewa’s party managed a paltry 3 seats in the 1980 elections. He never recovered. The gods of politics were already pronouncing the last rites on his political career. The colonial regime also used the strategy of co-optation concerning chiefs. Agreeing to be co-opted by the regime was costly. The sheer absence of political wisdom on display given these historical precedents is astounding. A GNU that would exclude the largest opposition party and the biggest opposition leader would be doomed from the start.
Moral dilemma - what would you do?
This BSR has used the big picture approach to present the broader political landscape in which the judgment is located, as a chapter of lawfare in the longstanding contestation between ZANU PF and the MDC. As already stated, in this landscape approach, the Supreme Court judgment is merely one of the trees in the big forest. Its impact on the opposition cannot be fully appreciated unless it is considered as part of the entire forest. Members who have the task of making decisions in the current circumstances ought to do so from an informed position, understanding the big picture, not the single item in it.
However, as already stated, the BSR does not make decisions for the people. It merely provides some tools that can be used in the decision-making process. Indeed, other writers can and have offered some tools. The BSR leaves the reader with some food for thought. To understand what has happened and to consider the best course of action, the BSR draws upon a commonly-cited moral dilemma. This is a dilemma in which a person is faced with two options, both of which have adverse characteristics and consequences and must choose one.
In 1842, a ship struck an iceberg on its voyage. At least 30 people survived and found themselves on a lifeboat. However, there was a problem. The lifeboat had a carrying capacity of just 7 people. Because of an approaching storm, the lifeboat was in danger of sinking unless some drastic measures were taken. The boat had to be lightened which meant some of the survivors had to be thrown overboard. As the boat needed strong rowers, it meant the weakest members of the group would have to be sacrificed.
The captain had two choices: first, throwing some overboard would give a chance for the remainder to survive but the captain who made the decision would be charged with murder or second, if everyone remained on board, the lifeboat would surely sink and everyone would die.
So the question for the reader is, what would you do if you were the captain in these circumstances? Men and women of great intelligence have grappled with this and similar moral dilemmas. There is no single answer that is correct. The important thing is these moral dilemmas get you to think deeply about the decisions that you take each day. The decisions that MDC members have to make in light of current events are just as complex and demanding. If you were following closely, you will have observed that the framing of the issue as a moral dilemma moves the matter away from the narrow confines of law and politics into the realm of not just philosophy but also everyday decision-making concerning practical matters.