Tsvangirai helped save Mugabe from possible contempt of court charges

After having recently described himself effectively as neither a leader nor a player but as only a main actor, whose script and what role is Morgan Tsvangirai acting in his High Court bid filed last Thursday seeking to be included among the respondents in an application by President Mugabe asking for more time to proclaim the date for the by-elections in Nkayi South, Bulilima East and Lupane East whose holding will be subsumed under the forthcoming harmonised elections whose date should have been announced today?

In his surprising and indeed misplaced application, Tsvangirai is challenging President Mugabe's indication to the court that he intends to lawfully call for the now due harmonised elections to be held by June  29 2013 to take care of the electoral vacancies in Nkayi South, Bulilima East and Lupane East constituencies as well as in all the pending parliamentary by-elections across the country.

Tsvangirai's application is surprising and misplaced not only because it has come like a bolt from the blue but also because it is at variance with his previous public pronouncements on one and the same matter; is inconsistent with the court record in the application in question; and is dramatically at odds with GPA and constitutional developments on the ground.

All indications are that Tsvangirai was prompted to make the surprising and misplaced court application last Thursday by the so-called Friends of Zimbabwe who are in fact Friends of Britain whose meeting in London last Tuesday proclaimed - for the first time since they launched their regime-change onslaught against Zimbabwe - that Britain and its allies will "work with any government (in Zimbabwe) emerging from free and fair elections, which are credible, peaceful and transparent".

This Machiavellian statement has apparently left Tsvangirai and his embattled MDC in disarray not least because they expected the founders and funders of regime change in Zimbabwe to yet again take their now tired and detested view that they would only work with a Tsvangirai led MDC government after the forthcoming elections to be held by 29 June.

It is also notable that British government and its allies used their London meeting last Tuesday to reveal that they have jointly and severally over the last four years of the GPA government pumped a staggering $2,6 billion into the country outside Treasury channels of the national budget and therefore through MDC T linked or affiliated NGOs in support of MDC T led ministries that have nothing to show for the money.

Tsvangirai is understandably nervous and now panicking over the disclosure that his MDC led government ministries and the NGOs affiliated to his beleaguered party, such as Idazim, have received a confounding US$2,6 billion since the inception of the GPA government but cannot show what they have done with it. This money has not been accounted for and there are growing questions about the corruption surrounding its abuse for which Tsvangirai must be held responsible.

Many of the NGOs that cannot account for this money - and who were hoping that its shocking amount would be kept a secret between them, the MDC T and their donors among the Friends of Britain group against Zimbabwe that met in London last Tuesday - have been complaining to anyone willing to listen to them that "Tsvangirai has lost it" with allegations that he no longer has his alleged "legendary bravery" to challenge or confront President Mugabe.

It is against this backdrop that only a day after the London meeting of the Friends of Britain against Zimbabwe Tsvangirai filed a misplaced court application against President Mugabe last Thursday which was full of sound and fury and which was given widespread publicity while it signified nothing else besides the fact that Tsvangirai's script writers who are also his hand-holders want him to show some treacherous muscle by displaying his "bravery" of old to confront President Mugabe.

So what is going on here?

The donor countries that make up the grouping of the Friends of Britain against Zimbabwe which met in London last Tuesday - and which are well-known for their double-dealing - are playing a dangerous act in which Tsvangirai remains the main actor. On the one hand, these donors who have over the last four years poured US$2,6 billion outside the Government systems over the last four years into MDC-T NGOs and ministries in the hope of stealthily securing a Tsvangirai victory in the forthcoming elections against all odds are publicly declaring the quantum of their donation in support of their electoral horse in the form of the MDC-T while also publicly pledging falsely "to work with any government emerging from free and fair elections, which are credible, peaceful and transparent".

The fact is that nobody has been fooled by this pledge which does not make sense not least because it is contradicted by the fact that the same donor countries that are committing themselves "to work with any government emerging from free and fair elections, which are credible, peaceful and transparent" made their real and true evil intentions clear by coming out of the woods on the eve of their London meeting last Tuesday under the cover of the EU which suspended its illegal sanctions on every person and institution that had been listed except 10 Zimbabweans led by President Mugabe and two strategic institutions led by the Zimbabwe Mining Development Corporation (ZMDC).

One does not have to be a specialist to realise that the Zimbabweans who remain on the evil list of EU sanctions make up the critical core of our national security. It is also crystal clear that the retention of ZMDC in the same evil list of sanctions is because ZMDC holds the mineral claims in the Chiadzwa Diamond fields and is either mining there alone or in strategic joint venture arrangements with a variety of international partners not to mention its strategic involvement in gold mining and so forth and so on.

In essence the EU has - from its regime-change point of view -suspended its evil sanctions on useless targets and retained them on the very useful ones with the result that the cat is now out of the bag for everyone to see what the real intention is. Britain and its EU allies have decided to amount an open, very dangerous and totally unacceptable onslaught against Zimbabwe's national security establishment by keeping their regime-change sanctions against President Mugabe and the leadership of our national security.

In the same vein, the Friends of Britain against Zimbabwe have declared an open economic onslaught against Zimbabwe's economic lifeline - given the importance of mining to the country's economic recovery - by retaining evil sanctions against ZMDC.

It is therefore obvious that the suspension of EU sanctions at the eleventh hour before the forthcoming harmonised elections that are due by 29 June is just neo-colonial trickery that should be dismissed with the contempt it deserves in the light of the retention of the same sanctions against President Mugabe and the leadership of our national security and against ZMDC which is the key to Zimbabwe's economic recovery. It is also obvious that this donor trickery in pursuit of regime-change is behind the duplicitous pledge made in London last Tuesday by the Friends of Britain against Zimbabwe "to work with any government emerging from free and fair elections, which are credible, peaceful and transparent". The pledge is a white lie with blue consequences.

If Britain and its allies in the EU, US and the White Commonwealth really want free and fair elections in Zimbabwe that are transparent and credible, then they must unconditionally and immediately lift all their evil sanctions against the country. The notion that you can have people who claim to be Zimbabwe's friends imposing sanctions against the country is a cruel contradiction in terms whose inherent folly is self-evident. It is also not right that you can have the so-called Friends of Zimbabwe channelling their dirty funds into the country outside Treasury through MDC T affiliated NGOs as has happened with the US$2,6 billion that has been corruptly used over the last four years and has thus not been accounted for.

The retention at the eleventh hour of evil sanctions against President Mugabe and the leadership of our national security and against ZMDC which is the country's economic lifeline from a mining point of view is an open challenge first to those Zimbabweans whose names have been suspended from the sanctions list to ignore the suspension in solidarity with President Mugabe. In other words, and as a matter of revolutionary solidarity, everyone whose name has been allegedly suspended in a Machiavellian way to cause confusion and division in aid of regime-change must continue to consider themselves to be still on the sanctions list until and unless every Zimbabwean has been removed from the list. Anyone who does not do this would be engaging in treachery of the highest order.

Over and above this - and taking a page from Kenyans who overwhelmingly rejected imperialist and neo-colonial machinations by electing Uhuru Kenyatta who was opposed by the same donors who want to call themselves Friends of Zimbabwe - Zimbabweans should start mobilising to vote for President Mugabe in their numbers to make a clear statement to the imperialists and neo-colonialists that their interference through their unwarranted and evil sanctions against our national leadership and national economic institutions will not be tolerated under claims of partial suspension of their evil sanctions or any circumstances whatsoever.

Zimbabweans must send the message that evil sanctions against one of them are sanctions against all of them and the best way of sending that message is by voting overwhelmingly for President Mugabe in the forthcoming elections due by June 29 in the same way Kenyans voted for Uhuru Kenyatta whose election was confirmed the Kenyan Supreme Court yesterday.

Meanwhile and for the same reasons, Tsvangirai should forget about using borrowed bravery through his hopeless court application to be a respondent in a case that has become academic for all intents and purposes and is therefore now irrelevant as a direct result of his misplaced application among other compelling considerations.

In the first place, Tsvangirai's application last Thursday caused the matter to be postponed to this Wednesday thereby ensuring that President Mugabe is effectively absolved from proclaiming a date for elections by today (March 31) as had been required by the High Court order which the President would like to be extended to May 7 or thereabouts when he would be ready under the new Constitution to proclaim the date of the harmonised elections which will subsume the by elections that are the cause of the pending court action.

In other words, thanks to Tsvangirai's ill-advised court application filed last Thursday which caused the matter to be postponed to this Wednesday, it is no longer possible for President Mugabe to be in contempt of court for failure to fix the date of elections by today. That is how mindless Tsvangirai is. He is his own worst enemy.

In the second place, one does not have to be a lawyer to understand that Tsvangirai has no loci standi or legal standing in the case which explains not only why he has never been cited right from the beginning but also why he has not until now declared a nebulous or obscure interest in the matter but has now done so only as an afterthought which is too glaring to be taken seriously.

Where has Tsvangirai been all along in a case that started in 2011? Is it because he has been too busy with his open zip or is it because he has had a lot of scripts to deal with as the main actor? Whatever the case, the legal position is very clear and it is that Tsvangirai has no legal interest in the matter. Full stop.

In the third place, the record will show that when President Mugabe submitted to the High Court in the previous proceedings that he intended to proclaim a date of the harmonised elections to be held by today (March 31), Tsvangirai did not object or seek to be heard by the court as a respondent. In fact, on Friday March 27 2012 the AFP news agency reported in a widely distributed story headlined, "Zimbabwe election is a must by March 2013" that "Zimbabwe will have to hold fresh elections by March next year (this year) to replace the uneasy power sharing government with President Robert Mugabe, Prime Minister Morgan Tsvangirai said". AFP quoted the MDC T leader declaring that

"We have a deadline, March 2013 is the end of this parliament so we have to go to an election".

Perhaps there would have been some comical merit if Tsvangirai's case in his Thursday court application, which caused postponement of the matter to this Wednesday, was that elections should be held by today in support of his widely known public position that harmonised elections should be held by today.

Yet everyone knows why elections cannot be held by today and that is why President Mugabe has sought the court's indulgence to have the time for him to proclaim the date for the harmonised elections which should have been made by today extended to May 7 or thereabouts in order to ensure that the elections are held by 29 June when the current Parliament will stand automatically dissolved. To give him the benefit of doubt, it is perhaps the case that when Tsvangirai declared on January 27 2012 that fresh elections should be held by March 2013, he wrongly believed in good faith that the term of the current Parliament would expire today and rightly wanted elections to be held by that expiry.

But the correct position that everybody now knows is that the term of the current Parliament in fact expires midnight on June 29. It is therefore necessary for the next harmonised elections to be held before or by that day and this is the essence of President Mugabe's submission to the court in a hearing now scheduled for this Wednesday. Why or how Tsvangirai imagines that he can challenge this unassailable position only God knows.

The position is unassailable because, among other things, it is enshrined in Clause 3(1) of Schedule 6 of the proposed new Constitution whose Constitutional Bill was gazetted on the same day that Tsvangirai filed his misguided court application.

Notably, Schedule 6 will come into effect on the publication day of the new Constitution to be done by President Mugabe. This schedule makes it very clear that the forthcoming elections will be timed, organised and conducted in terms of the new Constitution which does not have a Prime Minister to be consulted about anything relating to the elections since his functions in terms of Schedule 8 of the current Constitution will be history as he will be reduced to an executive ornament on the publication day of the new Constitution.

Indeed, Clause 158 of the Constitutional Bill dealing with the timing of the elections clearly provides under 158(1)(a) that "A general election must be held so that polling takes place not more than thirty days before the expiry of the five-year period (of the life of Parliament) specified in section 143". The self-indulgent notion doing rounds in some beerhall circles that elections should be held some four months after the automatic dissolution of Parliament at midnight on June 29 can be entertained only if it were that the next elections will be run on the basis of the current Constitution but that is clearly not the case at all. In terms of the Constitutional Bill the next elections will have to be held not more than thirty days before June 29.

This is an unassailable fact which should be food for thought among those who are dreaming of an election under the current Constitution when the legal position that is looming large is that the timing of the next elections will be determined in terms of the new Constitution in accordance with Clause 3 of Schedule 6 which will come into effect on the day the new Constitution is published by President Mugabe.

What this means is that the time to kiss goodbye to the GPA with all its baggage and indeed garbage has come. The next election is not a GPA matter but a national and constitutional matter of interest to all Zimbabweans beyond the three GPA political parties whose troubled and awkward rule has come to an irreversible end that cannot be extended beyond June 29. And that election will be run in terms of the new Constitution whose bill has been gazetted.

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Professor Jonathan Moyo is a political scientist and MP for Tsholotsho North (Zanu-PF)