The Supreme Court’s MDC-T presidential legitimacy has brought to the fore issues on appointments of key figures to Parliament; Zimbabwe Anti-Corruption Commission; and the MDC-T national executive.
By Sharon Hofisi
To understand the essence of the recall of MDC-A MPs, this think-piece situates the analysis on debates in constitutional and political philosophy.
The obvious question becomes: “Who owns the MDC-A or the MDC-T?”
Regrettably, the Supreme Court judgment does not provide an answer.
Neither does it resolve the ultimate question on who can recall MPs in the MDC-A.
Hence, it becomes easier to analyse the judgment using the public control doctrine where legitimacy forces the public to accept the court decision and consider their obedience to it as a just commitment.
In my opinion, the recalling question is nothing more than a trial balloon, which, incidentally, is fertilised by whistle-stopping acts.
No wonder the debate has also been exacerbated by the unusual political status of the MDC-A whose coattails-led pact is seen as a unique political party
Further, Parliament does not have the capacity to front-burn on issues of institutional dialogues over the legitimacy of judicial decisions or the recalling of MPs.
It seems that the Supreme Court judgment also came when Khupe’s term had expired.
As I can see it, it does not provide useful insights on how Khupe’s tenure can be continued in a manner that could affect restore the status of key members who had voluntarily resigned such as Jessie Majome; or those who formed other political parties like those in the MDC-A executive or in Parliament.
As such, she has lessened power to even unite the MDC-T members.
I think the emphasis on recalls on MDC-A parliamentarians under the auspices of the MDC-T is mistaken.
It might be useful for those supporting the recall process to explore the MDC-A’s agreement on the recall process.
My argument is that Parliament, in exercising powers to recall the MDC-A MPs, whether from the MDC-T or other political parties in the MDC-A, is better guided by the MDC-A’s agreement and the national constitution than a judgment whose legitimacy on the recall process remains uncertain.
If the MDC-T leadership under the MDC-A doesn’t give legitimacy to the Supreme Court judgment, there will likely be court litigation to interpret the appropriate remedy for the affected MPs.
If Khupe’s leadership wins, the legitimacy battle becomes one of constitution with or without constitutionalism.
From a legal process point of view, it is important that court judgments be respected.
If the absence of a constitutional challenge by the MDC-T under Chamisa, in the Constitutional Court is not made, the general populace and the recalling authorities may pay attention to the Supreme Court judgment as the source of debate.
I do not have information on whether a constitutional challenge to the Supreme Court judgment has been made, but the constitutional question that is important at the moment remains: Is the Supreme Court judgment in its MDC-T constitutional context legitimate?
Three if not four major issues have to be considered to demonstrate a range of choices that may be available to the MDC-T under Khupe or Chamisa: The political status of the MDC-A; the constitutional doctrine of status quo; the doctrine of parliamentary constraints; and the doctrine of supremacy of the Constitution.
I don’t think the power of recall easily lies with the MDC-T under Khupe.
Firstly, the determination of the MDC-A’s political party status is important simply because, constitutionally, the success of a recall petition depends on the existence of a political party, which has the powers to lawfully recall a parliamentarian.
A political party is simply described as an organisation that seeks to achieve political power by electing its members to public office.
This is what the MDC-A did in 2018.
Further, a successful recall must effectively trigger a by-election in the constituency of the parliamentarian, who has been lawfully fired.
For this reason, the political status of the MDC-A has to be discussed from the perspective of a political party.
Once it is admitted that it is a political party, then the question on the authoritative body to recall MDC-A MPs falls away.
The suggestion of a recall can thus be seen as a trial balloon, only meant to observe the reaction of political parties or Parliament itself.
Trial balloons only serve to give credit to politicians who get a favourable reaction.
Secondly, the status quo doctrine is important in determining the horizontal rights of the MDC-T members under Chamisa and Khupe.
While the Supreme Court judgment attempts to restore the “status quo” that existed when Tsvangirai passed on, it does not deal with the effect of a “broken constitution”, where the MDC-T constitution, and the structure of government that it establishes, provides the backdrop, but never the substance of a political controversy.
This in a way, is the story of the MDC-T in the MDC-A.
Further, the judgment was decided in the post-MDC-T constitutional era.
The status quo that Chamisa benefited from is not what the MDC-T or the MDC-A is living under.
If the status quo is not popular with the voters, it means any debates on the recall can either result in what can only be termed political morality, creates political suicides or rubber chicken circuits.
To this end, political dimensions of the recall should not be looked at publicly in the way a tennis player uses spin to direct the ball.
Further, the status quo doctrine is also affected by the silent majority in the MDC-A.
The enormous opinions of the MDC-A supporters affirm that Chamisa and his MPs’ prominence are bound up with the MDC-A.
Chamisa was elected twice, both times by either the operation of the MDC-T constitution, or the sui generis Alliance constitution, the latter a pact of conjoined political wishes to fulfil the functions of a political party to unseat Zanu PF in the 2018 elections.
In essence, the MDC-A agreement and MDC-T constitution allow Chamisa and Khupe to get away with too much, whether one cheerleads on behalf of the MDC-A or the MDC-T.
While the MDC-A has sometimes been described as an election pact and not a political party, its participation in the 2018 harmonised elections clearly showed that it did so as a political party.
If Chamisa was appointed as MDC-T acting president, after Tsvangirai’s passing, on the strength that, by operation of the technical provisions in the MDC-T constitution, he was the MDC-T president in Zimbabwe, as contemplated by the MDC-T constitution.
By parity of reasoning, the invocation of the status quo doctrine becomes highly politically moralised.
Once it is accepted that Chamisa had legitimacy as Tsvangirai’s successor, then the MDC-A leadership, where Chamisa is president, becomes the legitimate authority to notify the speaker of Parliament or act in any other manner that affects the political rights of its members, notwithstanding the existence of a court judgment.
Further insights can be gleaned from the Alliance agreement, which provides on how each of the parties to the pact can move to recall their own members from Parliament or the national executive.
The importance of using the constitutional status quo doctrine is that it focuses on unconstitutional conditions, which can be used to resolve matters unfavourably to the consumers of the fruits of a poisonous tree.
Here we look at the legitimacy of the MDC-T leadership under Chamisa.
This is, however, to be interpreted either in terms of the current judgment or the operation of the MDC-T constitution of 2014.
At the moment, in the absence of a constitutional challenge, or the initiation of the MP recall process, only idiosyncratic perspectives suffice to make sense of the recalling process.
For starters, in terms of procedure, the recall of MPs in Zimbabwe is based on the mother law of the land, the constitution of Zimbabwe, 2013.
The constitution provides the normative content on how private political parties can work with the national legislature to resolve political impasses.
Thirdly, the doctrine of parliamentary constraints obligates Parliament to strive to respect the fourth pillar considered in this think piece, that is, constitutional democracy, by accepting the recall of MPs through lawful political party actions.
In Madisonian constitutionalism, Parliament should be strong enough to avoid the dangers of political factions.
Madison cautioned political groups not to act in terms of passion rather than reason, and to devote the constitutional energies to the public good rather than self-interest.
To employ Madisonian views, any Parliament must arrest the evils of faction, as long as it is divided into the two houses (in our case, the Upper and Lower Houses).
Parliament’s powers are thus constitutionally constrained enough to protect political rights of MPs as contemplated by the Bill of Rights.
In terms of the constitution, Parliament has so little power to initiate the recall process and can only act in instances where a lawful political party, such as the MDC-A, notifies the speaker of its intention to fire an MP.
The speaker can then enforce the decisions of a lawful political party by declaring the seat of the fired member, vacant, usually on the grounds of acts of misconduct.
The greatest challenge of course is that Zimbabwe does not have an enabling Act to provide enough content on matters relating to the recalling of parliamentarians or interpretation of breaches of political rights in situations where we have a coattails or coalition constitution.
This is why the existence of enabling laws in countries such as the United Kingdom, where an enabling Act, the recall of MPs Act 2015, is considered important in providing useful insights on the assessment of recall procedures.
The likelihood of court litigation in the event of parliamentary involvement stems from the fact that, while Zimbabwe has a justiciable Declaration or Bill of Rights in Chapter 4 of the constitution, there is no enabling Act of Parliament to provide useful content on the actual procedure on recall of parliamentarians.
What we have is the Declaration of Rights in the constitution, which entrenches political rights in section 67.
The said section allows Zimbabwean citizens to form, join, participate or further the lawful interests of a political party of their choice.
Even though Zimbabwe has a justiciable constitution, section 129 (k) of the constitution is only instructive in matters relating to the process of recall rather than the actual procedure on recall.
The said section clothes political parties with the powers to recall MPs which entered into Parliament under their banner.
The concerned political party is constitutionally obligated to notify the speaker of Parliament, in writing, of the reasons for firing the MP to be recalled.
Once notified, the speaker is again constitutionally obligated to declare the seat of the fired MP vacant.
The logical corollary to the lacuna in our constitution is that we can only place emphasis on the fact that the national constitution makes it peremptory for the speaker of Parliament to recall MPs, only in instances where a political party that brought them to Parliament exists.
Further, under the doctrines of constitutional supremacy, constitutional democracy, and representative democracy entrenched in our constitution, the speaker of Parliament becomes the administrative authority to consummate the recalling process.
Sharon Hofisi is a University of Zimbabwe law lecturer and a PHD student. Hofisi can be contacted through email@example.com