News / National
Source of MDC leadership confusion is a poorly drafted constitution
27 May 2019 at 08:13hrs | Views
MY issue with judgments on who is President of the MDC, who is Deputy President, and the rest, is that those making arguments are selective in their reading of the Constitution, looking to find fault or merit in individuals, when the culprit in this whole mess is the Constitution itself.
We are concerned with the actions of a deliberative body. There is a higher bar for proving that such a body misinterpreted something. It is not one individual that reached a wrong conclusion: it is a whole group of people. Where a group is able to reach a conclusion that is false, the error is in the document, not the group.
Now we have individuals, whether they're judges, legal experts, or laymen, holding their individual interpretation above that of a group.
I am a layman. I'm not a lawyer or legal expert. I can though read, and can comprehend what I read as well as most. This is my interpretation.
The Constitution was supposed to be clear and unambiguous. It wasn't, and reasonable people were capable of reaching different conclusions. In such an important topic as succession, that should never have been possible.
The argument for one VP comes down to a less than ideal argument: how many times it's referred to in the plural versus the singular in the Constitution. Six out of eight times it's mentioned in the singular. However, the two instances it is mentioned in the plural are rather key, as they are describing who forms what Party Organ. Under the composition of the National Standing Committee, the Constitution says: "Deputy Presidents." Under the composition of the National Executive Committee, the Constitution says: "President and Deputy Presidents."
The idea that it is a typo is difficult to accept, when it occurs twice in such critical places. It's at least plausible that since it was a change from 2011, the new plural form failed to be populated throughout the whole of the document.
Even if you feel it is more plausible that the reverse is true, that it was a typo in the two instances where the members of key organs of the Party were listed, it is at least open for interpretation, and therefore not possible to conclude one way without someone else being able to conclude the other.
Further, there is the matter that the Party was operating as if three VPs were permissible for several years. If the issue is what happened that led to the appointment of an Acting President, it shows a certain kind of desperation, or reaching, to travel back in time to attempt to pre-empt the issue entirely. The real crux of the issue is not how many VPs there were, but which of the VPs should have become Acting President.
Once you accept that it is at least a possible interpretation that more than one VP is permitted in the Constitution, you move on to figure out which should be declared Acting President. Unfortunately, when you go to look to find out who assumes the role of Acting President, you see that is one of the places where the Deputy President is in the singular. It hasn't been updated to reflect more than one VP.
Section 9.21.1 says:
"In the event of the death or resignation of the President, the Deputy President assumes the role of Acting President…"
With it not defined in the Constitution, the practice had been that the President designated who was Acting President when he was not available. One natural conclusion is that the last person to hold the role of Acting President at the time of the President's passing, was Acting President going forward. It is true that the President was aware he would pass on soon.
Unsurprisingly, those deputies not holding the role at the time of the President's death would not be happy with this arrangement. Also, while it was the practice to determine who was Acting President in this manner, it leaves a bad taste for a democratic organization, as it suggests the President appointed his successor.
Some will say that even if the Constitution permits multiple deputies, only one deputy, Khupe, was duly elected. Under 6.4.4.1 (b) of the Constitution it says:
The National Standing Committee shall compose of the following office bearers elected by Congress:
(b): The Deputy Presidents
In this instance, where only one VP was elected at the 2014 Congress, and the other two were appointed later, the argument is that Khupe, being the only member elected in 2014, was the Acting President and a Congress would be necessary to appoint someone else President.
Except, at section 6.4.4.6, these powers are granted to the National Council: The National Council shall have the power of appointing any member of the National Executive Committee to any secretariat or policy position not specifically created in terms of this Constitution. Further the National Council shall have the power of appointing any deputy to any position or office where such does not exist and shall at any time create and fill any new Party Secretary position.
You can debate whether that applies to Deputy Presidents, or even Acting Presidents, or not, and that's PRECISELY the problem: it's debatable.
Further, there's an argument to be made that the President is also able to appoint deputies. Under section 9.1.4, it says: The President shall, appoint deputies to officers of Congress from a pool of National Executive members elected from provinces and other office bearers where such is provided for in this Constitution and shall, from time to time, assign functions and responsibilities to various portfolios in the National Executive.
The President is an officer of Congress, and it says right there that the President shall appoint deputies to officers of Congress. If I could change this Constitution, I would want to make it so only Congress can elect officers. If I had my way, there would only be one VP allowed. If multiple VPs were maintained, I'd at least define how many, and rank them all by votes received at Congress, so it was clear who was number one, number two, etc.
But that's all about what I want, what I think. It doesn't deal with the problem, which is: reasonable people were capable of reaching different conclusions.
You may hold a different opinion, but there are clearly other rational conclusions to be made whether you agree with them or not. The fault was in the Constitution. It should not have been possible for reasonable people to reach different conclusions. Going forward, the Constitution must be deliberated on, and amended until it is no longer possible for reasonable people to reach different conclusions.
Before that happens, every conclusion reached will be subject to challenge. In the meantime, when I judge for myself what is right and what is wrong, it may be my opinion that one decision should have been made over another, but where fault is concerned, I'm restricted to whether the body made its decisions in good faith.
Without knowledge of their hearts, or evidence otherwise, I must presume they did. The solution is not to rule one side right, the other wrong. The solution is to now move on, and for the party, through its members, to vote and settle the matter.
We are concerned with the actions of a deliberative body. There is a higher bar for proving that such a body misinterpreted something. It is not one individual that reached a wrong conclusion: it is a whole group of people. Where a group is able to reach a conclusion that is false, the error is in the document, not the group.
Now we have individuals, whether they're judges, legal experts, or laymen, holding their individual interpretation above that of a group.
I am a layman. I'm not a lawyer or legal expert. I can though read, and can comprehend what I read as well as most. This is my interpretation.
The Constitution was supposed to be clear and unambiguous. It wasn't, and reasonable people were capable of reaching different conclusions. In such an important topic as succession, that should never have been possible.
The argument for one VP comes down to a less than ideal argument: how many times it's referred to in the plural versus the singular in the Constitution. Six out of eight times it's mentioned in the singular. However, the two instances it is mentioned in the plural are rather key, as they are describing who forms what Party Organ. Under the composition of the National Standing Committee, the Constitution says: "Deputy Presidents." Under the composition of the National Executive Committee, the Constitution says: "President and Deputy Presidents."
The idea that it is a typo is difficult to accept, when it occurs twice in such critical places. It's at least plausible that since it was a change from 2011, the new plural form failed to be populated throughout the whole of the document.
Even if you feel it is more plausible that the reverse is true, that it was a typo in the two instances where the members of key organs of the Party were listed, it is at least open for interpretation, and therefore not possible to conclude one way without someone else being able to conclude the other.
Further, there is the matter that the Party was operating as if three VPs were permissible for several years. If the issue is what happened that led to the appointment of an Acting President, it shows a certain kind of desperation, or reaching, to travel back in time to attempt to pre-empt the issue entirely. The real crux of the issue is not how many VPs there were, but which of the VPs should have become Acting President.
Once you accept that it is at least a possible interpretation that more than one VP is permitted in the Constitution, you move on to figure out which should be declared Acting President. Unfortunately, when you go to look to find out who assumes the role of Acting President, you see that is one of the places where the Deputy President is in the singular. It hasn't been updated to reflect more than one VP.
Section 9.21.1 says:
"In the event of the death or resignation of the President, the Deputy President assumes the role of Acting President…"
Unsurprisingly, those deputies not holding the role at the time of the President's death would not be happy with this arrangement. Also, while it was the practice to determine who was Acting President in this manner, it leaves a bad taste for a democratic organization, as it suggests the President appointed his successor.
Some will say that even if the Constitution permits multiple deputies, only one deputy, Khupe, was duly elected. Under 6.4.4.1 (b) of the Constitution it says:
The National Standing Committee shall compose of the following office bearers elected by Congress:
(b): The Deputy Presidents
In this instance, where only one VP was elected at the 2014 Congress, and the other two were appointed later, the argument is that Khupe, being the only member elected in 2014, was the Acting President and a Congress would be necessary to appoint someone else President.
Except, at section 6.4.4.6, these powers are granted to the National Council: The National Council shall have the power of appointing any member of the National Executive Committee to any secretariat or policy position not specifically created in terms of this Constitution. Further the National Council shall have the power of appointing any deputy to any position or office where such does not exist and shall at any time create and fill any new Party Secretary position.
You can debate whether that applies to Deputy Presidents, or even Acting Presidents, or not, and that's PRECISELY the problem: it's debatable.
Further, there's an argument to be made that the President is also able to appoint deputies. Under section 9.1.4, it says: The President shall, appoint deputies to officers of Congress from a pool of National Executive members elected from provinces and other office bearers where such is provided for in this Constitution and shall, from time to time, assign functions and responsibilities to various portfolios in the National Executive.
The President is an officer of Congress, and it says right there that the President shall appoint deputies to officers of Congress. If I could change this Constitution, I would want to make it so only Congress can elect officers. If I had my way, there would only be one VP allowed. If multiple VPs were maintained, I'd at least define how many, and rank them all by votes received at Congress, so it was clear who was number one, number two, etc.
But that's all about what I want, what I think. It doesn't deal with the problem, which is: reasonable people were capable of reaching different conclusions.
You may hold a different opinion, but there are clearly other rational conclusions to be made whether you agree with them or not. The fault was in the Constitution. It should not have been possible for reasonable people to reach different conclusions. Going forward, the Constitution must be deliberated on, and amended until it is no longer possible for reasonable people to reach different conclusions.
Before that happens, every conclusion reached will be subject to challenge. In the meantime, when I judge for myself what is right and what is wrong, it may be my opinion that one decision should have been made over another, but where fault is concerned, I'm restricted to whether the body made its decisions in good faith.
Without knowledge of their hearts, or evidence otherwise, I must presume they did. The solution is not to rule one side right, the other wrong. The solution is to now move on, and for the party, through its members, to vote and settle the matter.
Source - ZimLive
