Chamisa, Khupe legal wrangle poses Nomination Court challenge

THE legal wrangle pitting two rival MDC-T factions over rights to the party's name and symbols could pose challenges when the Nomination Court sits next Thursday, legal experts said yesterday.

The two factions, one led by Mr Nelson Chamisa and another by Dr Thokozani Khupe, are locked in a court battle following an acrimonious fall out over the succession of the late founding MDC-T leader Mr Morgan Tsvangirai. Mr Tsvangirai succumbed to cancer in February this year.

The Supreme Court last month ruled that the matter be referred back to the High Court on an urgent basis for trial but it has not been set down.

Lawyers interviewed by The Chronicle yesterday said as it stands, none of the factions have the right to the name which might pose as a serious challenge for the Zimbabwe Electoral Commission and the electorate if both were to insist on using the name and symbols.

Harare lawyer Mr Harrison Nkomo said Zec can use its discretion to differentiate party logos.

"In fact the issue is of the names that will be submitted by the respective political parties to the Nomination Court. They can only listen to an order of Court, if there is no order of court, it will proceed. At law, there is nothing that precludes Zec from using its discretion whether to accept them as they are or not," said Mr Nkomo.

Constitutional law expert and Dr Khuphe's lawyer, Professor Lovemore Madhuku, said the parties may have to settle for a variation ahead of the Nomination Court.

"I think the political parties will have to agree on how they provide nomination papers .I'm sure they will have to find some variation here and there .I think that will happen because it has not been set down because we still haven't got a date.  I'm sure they will have to agree on the variation, but that's up to the political parties. I only deal with the legal aspect, I don't have the mandate to advise on such matters," said Mr Madhuku referring further questions to the parties' spokespersons.

Mr Chamisa's lawyer, Advocate Thabani Mpofu declined to comment on the matter.

Bulawayo lawyer Mr Tanaka Muganyi said the fight over the name would confuse supporters of both factions if ballots are to be printed under the same logos.

He said the courts should have treated the matter with urgency bearing in mind that it was an electoral matter.

"When you go to the Nomination Court, you go there representing a party so it's going to further confuse the electorate. The electorate will suffer most from the confusion.

"What should have been done is that when the Court decided that the matter be set down and go for trial , it was supposed to bear in mind that there was a Nomination Court and the matter is finished before the Nomination Court," said Mr Muganyi.

"The court should have taken judicial notice of that because at the end of the day it will cause confusion".

Mr Muganyi said in its appeal to the Supreme Court, the Chamisa-led faction was supposed to make a provisional order seeking finality before the sitting of the Nomination Court. "What could have possibly been done is that when the Chamisa-led MDC filed their appeal at the Supreme Court nullifying Justice Bere's judgment, it knew the Nomination Court was coming and so they were supposed to have made a provision in their order to say this matter should be finalised before the Nomination Court," he said.

Mr Muganyi said the Courts could have assigned a special judge to deal with the matter because it's an Electoral matter before the sitting of the Nomination Court.

"It is an unfortunate oversight by both parties," he said.

Following the Supreme Court's remittance of the matter back to the High Court , the Chamisa-led faction, through its lawyer, Adv Mpofu, recently filed its declaratur (order seeking an official statement) pleading with the court to grant them the relief they sought.

"As a result of their expulsion, the first, second and third defendants (Khupe, Gutu and Bhebhe) lost the right to the use of the name, symbol, logo and trademark of the MDC," said Adv Mpofu.  "Despite losing the right to the use of the name, symbol, logo and trademark of the plaintiff (MDC), defendants have without lawful excuse continued to hold themselves out as belonging to the plaintiff and have abused its name, symbol, logo and trademark."