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Legal experts speak on MDC court ruling

by BustopTV

By Lloyd Takawira

While the nation is grappling with coronavirus, the first week of lockdown witnessed dramatic events in the political space.

This sent social media into a frenzy with emotions high in the opposition party MDC.

The supreme court in a landmark rulling declared Advocate Nelson Chamisa an illegitimate MDC President.

Here is what legal minds have to say pertaining the ruling :

Advocate Thabani Mpofu said on page 33 of the Judgment, is recorded as having submitted that Mr Mashavira’s Founding Affidavit had referred to Thokozani Khupe as having ‘ purported to hold her own Congress in April 2018’ and ‘ was now leading her own party’ , and the fact that Thokozani Khupe’s own Opposing Affidavit had also accepted that she “ is no longer a member of the Party having decided to form her new party ” and that these were “ undisputed averments and allegations of fact” stemming from which Khupe could not “ possibly seek any relief from this Court ” as the proceedings had been “ overtaken by lawful election processes conducted by the Party at its Congress held in June 2019” rendering the proceedings moot.

Lawyer David Hofisi writing on his blog believes the judge’s did not error because the judgement is germane to the MDC.

He said ” the MDC Alliance was a vehicle for elections used by seven political parties led by the MDC, hence the prefix to its title. The MDC Alliance was never a stand-alone party but a group of parties coalescing around the MDC for purposes of elections”.

“This judgement reinforces Dr. Khupe’s claim to the reigns of the MDC in real and material terms. She is the Acting President of the MDC at law. Matters to do with party assets, participation in the MDC Alliance as well as disbursements from the state all fall squarely under her stewardship”.Hofisi said

Another Lawyer Brighton Mutebuka believes on face value the fact that the judgement was hastily passed in the midst of coronavirus raises man eyebrows.

” the court case lack of urgency involved and given that it had suggested most court business would be shut down, it raised many eyebrows across the divide”.

He went on to say, ” the most contentious aspect of the Judgment is on the “ Mootness of the Matter ” subject which is explored from page 32, the fact that Thokozani Khupe had moved on: “the court’s mootness on the existence of Khupe’s MDC-T, her subsequent congress and participation in national elections and the incorporation of MDC-A and its own similar / parallel chain of events are clearly capable of meeting that threshold in relation to the second strand, the court takes the position tha the court retains a discretion to “ lift the veil” on mootness where the interests of

Prominent constitutional lawyer Dr Alex Magaisa in his Big Saturday Read column put forward that the judgment is important as it teaches political parties to abide by their constitutions

“There is an important lesson here: the political parties must always comply with its constitution. When it does not do so, opponents will take advantage.”

He also went on to say party members should learn to challenge leaders.

“Another lesson is the problem of not challenging leaders when they are wrong. It is easy to blame Tsvangirai who is no longer around to explain or defend his decision but the leaders who stood by and failed to correct the illegality because they preferred not to rock the boat are all complicit in the illegality. Ironically, they should now want to claim the moral high ground four years after the event and two years after his death when they did nothing to correct it. It is even more hypocritical that the same people who are celebrating the finding that Tsvangirai acted illegally are, at the same time, claiming to be guardians of his legacy”.

Magaisa also said the court failed in its judgment as it mischaracterized two separate entities “… the court is at fault for mischaracterisation because the judge wrongly conflated the MDC Alliance and the MDC-T, believing them to be the same entity. The party that got those seats in parliament is the MDC Alliance, not the MDC-T which was also on the ballot paper “.
On the issue of MPs, Senators and Councillors Dr Magaisa said : “When MPs , Senator’s and Councillors contest in elections, by law they represent a political party. It is only that political party that can recall them from Parliament in terms of section 129 of the Constitution. As things stand, following the 2018 elections, all MPs, Senators and Councillors are representatives of the MDC Alliance. Douglas Mwonzora, stated emphatically in an interview with the press before the 2018 elections”.

He went on to say the supreme court of public opinion will now decides the warring MDC factions.

L “The supreme court of politics is the court of public opinion. It comprises the people; ordinary men and women, not men and women in judicial wigs , that one will now decide “.

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Emmanuel Makangira April 5, 2020 - 6:14 am

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