Why MDC-A must not change its name for by-elections

As embattled President Emmerson Mnangagwa dithers on whether or when to cause the compromised Zimbabwe Electoral Commission (ZEC) to discharge its constitutional obligation to call for the holding of parliamentary and local governmental by-elections occasioned by the unconstitutional recall of MDC-A MPs and councillors; while Douglas Mwonzora's MDC-T threatens to contest those by-elections as the MDC-A under dubious claims that it owns the name, there are growing calls that the MDC-A should rebrand and change its name to avoid an impending, unwinnable battle over the name in the captured courts, ahead of the much awaited by elections.

While understandable, upon closer scrutiny, the calls that the MDC-A should rebrand and change its name in time for the anticipated by-elections are misplaced and not strategic, as are the calls that the MDC-A should boycott the by-elections or that it should contest them under its name.

To put this in clearer terms, from an action point of view, the MDC-A should consider a three pronged approach:

- Save for broader and more strategic purposes, it should not rebrand or change its name for the by-elections.

- By-elections, if they are held, should not be boycotted.

- While by-elections should not be boycotted, they nevertheless should be the primary focus of the MDC-A; to this end, its by-election candidates should contest as independents, to enhance the party's presence in Parliament while keeping open its branding options as an expression of its "Citizen's Convergence for Change" initiative.
By way of unpacking this approach, it is important to understand why Mnangagwa is dithering on whether or when to call the by-elections; why Mwonzora's MDC-T is threatening to contest the by-elections as the MDC-A and why ZEC is delinquently failing to discharge its constitutional obligation to hold the long overdue by-elections.

On September 30, 2020 VicePresident Constantino Chiwenga, who also doubles as Health minister, issued Statutory Instrument 225A of 2020, "Public Health (Covid-19 Prevention, Containment and Treatment) (Amendment) Regulations, 2020 (No. 4) whose import relevant to this discussion was that:

"...the holding of any by-election to fill a casual vacancy in Parliament or in a local authority is for the duration of the period of the declaration of Covid-19 as a formidable epidemic disease, suspended, and if such vacancy occurred while such declaration is in force, no part of the period from the date of such vacancy to the date of the end of the declaration shall be counted for the purposes of Section 158(3) of the constitution".

Section 158(3) of the constitution of Zimbabwe provides that:

"Polling in by-elections to Parliament and local authorities must take place within ninety days after the vacancies occurred unless the vacancies occur within nine months before a general election is due to be held, in which event the vacancies may remain unfilled until the general election".

On October 7, 2020 ZEC's chief elections officer, Utoile Silaigwana issued a press statement announcing that:

"The Commission advises that the holding of by-elections remains suspended in line with public health regulations until the declaration of Covid-19 as a formidable pandemic has been lifted".

Then on March 1, 2021 Chiwenga relaxed the lockdown restrictions that he had tightened up on January 2 2021 under Statutory Instrument 10 of 2021; the relaxation covered a wide range of public activities, including allowing parliamentary public hearings.

Again, Silaigwana issued a press statement advising that ZEC had lifted restrictions it had imposed on January 8, 2021 on voter registration and some field work, but that 'the conduct of by-elections remained suspended.

The fact that, throughout this episode during which by-elections have remined suspended, ZEC has used press statements, and not its gazetted regulations, to maintain the suspension on the basis of Chiwenga's Covid-19 statutory instruments is outrageously unconstitutional and scandalous in the extreme.

This fact alone tells the whole story why ZEC is compromised beyond redemption, and why its chief elections officer and current commissioners are unfit for purpose and must resign or face rolling mass protests and petitions.

Section 235(1)(a) of the constitution provides that independent commissions, such as ZEC, "are independent and are not subject to the direction or control of anyone".

It is ridiculous and unacceptable that ZEC has preposterously used the cover of Covid-19 to put itself under the control and direction of Chiwenga.

In failing to perform its constitutional obligations by relying on Chiwenga's manifestly politicised statutory instruments regarding the holding of by-elections as provided under section 158(3) of the constitution of Zimbabwe, ZEC has wilfully and criminally violated section 2 of the constitution, which provides that:

(1)This constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.

(2)The obligations imposed by this constitution are binding on every person, natural or juristic, including the state and all executive, legislative and judicial institutions and agencies of government at every level, and must be fulfilled by them.

Section 239 of the constitution imposes an obligation on ZEC to ensure that "elections and referendums are conducted efficiently, freely, fairly, transparently and in accordance with the law".

ZEC has clearly gone rogue by failing to conduct by-elections in accordance with section 158(3) of the constitution.

While Covid-19 has been given as the reason for the suspension of by-elections, the fact that Zanu-PF held its DCC elections across the country, and that Mwonzora's MDC-T held its controversial extraordinary congress in the height of a devastating Covid-19 wave, means Covid-19 has nothing to do with the suspension of by-elections.

It will be recalled that on March 31, 2020, which marked the onset of the Covd-19 lockdown, two dubious rulings were handed down: one was a judgement by the Supreme Court ordering the MDC-T to hold an extraordinary congress to elect Morgan Tsvangirai's successor on the basis of the party's 2014 structures; the other was a judgement by the Constitutional Court invalidating constitution of Zimbabwe Amendment (No 1) Act, 2017 on the basis that it was enacted unconstitutionally because the Senate vote for it did not meet the required two-thirds majority, but in his judgement, Chief Justice Luke Malaba suspended the invalidation for 180 days from the date of his judgement to allow Senate to rectify the invalidity by correcting its vote.

At Mnangagwa's behest, these two judgements have toxified politics in Zimbabwe and corrupted the conduct of the three branches of the state, namely, the executive, Parliament and the judiciary in ways that have deformed the jurisprudential basis, institutional capacity and governance integrity of the state as a body politic.

Whereas the Supreme Court judgement has been used and abused for an unprecedented orgy of recalls of MDC-A MPs and councillors by people with no legal authority to make the recalls; Malaba's Constitutional Court judgement has triggered a Parliament in which Zanu-PF does not have a two-thirds majority in the Senate, nor in the National Assembly, to illegally enforce the illegal recalls in order to secure the required two-thirds majority via Mwonzora's MDC-T, the beneficiary of the recalls.

The Mwonzora strategy, which is driven by Isaac Moyo and Owen Mudha Ncube at the Central Intelligence Organisation (CIO), away from Zanu-PF's now redundant commissariat department, is to takeover Senate; because its entire membership is elected on the proportional representation slate based on the July 2018 constituency election results.

In other words, there are no by elections in the Senate.

This means that, in formal terms, the Senate has gone to Zanu-PF, which now has a two thirds majority, but only through Mwonzora.

That is why, save for the unpredictable Morgen Komichi, Mwonzora and his senators voted for the constitution of Zimbabwe Amendment (No. 1) Bill, 2017 despite the fact that it was illegally before the Senate in violation not only of Parliament's standing orders but also S147 of the constitution which stipulates that:

On the dissolution of Parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition and other business lapses.

The constitution of Zimbabwe Amendment (No 1) Bill, 2016 was introduced in the Eighth Parliament in 2016 and it died with that Parliament.

There is no constitutional way of resurrecting it in the current Ninth Parliament, by bringing it via a motion in Senate for the purposes of a third reading, without starting afresh from scratch.

But Mwonzora's lot in the Senate ignored this because they have become an extension of Zanu-PF; without being subjected to a by election.

While Mwonzora has found it relatively easy to formally, if not symbolically takeover MDC-A MPs in the Senate, as well as the women's quota MPs in the National Assembly, with the help of the CIO, he has a tricky and uphill task in the National Assembly, when it comes to MDC-A's directly elected constituency MPs.

This is because a recall of a directly elected MP, must be followed by a by-election and Mwonzora and the CIO know only too well that they cannot and will not win any by-election to fill a vacancy created by a recall of an MDCA MP. Never. No chance in heaven.

Out of the realisation of the danger they face in recalling MDC-A's directly elected constituency MPs, Mwonzora and the CIO have adopted a bifurcated strategy.

First, they have targeted only a dozen directly elected MDC-A MPs.

The targeted 12 are seen as Nelson Chamisa's radicals and they were recalled for propaganda purposes of faking toughness to ostensibly demonstrate to the others what could happen to them.

Second, Mwonzora and the CIO targeted only 12 MPs out of 63 because they in fact do not want to have by-elections at all; all what the CIO wanted is for Zanu-PF to gain two-thirds majority in Parliament through Mwonzora, to pass unpopular amendments to the constitution of Zimbabwe, to enable Chief Justice Malaba to remain in office and to give Mnangagwa imperial executive powers.

In the circumstances, what are the stakes for the MDC-A?

It is nonsensical for Mwonzora to claim that his MDC-T owns the MDC-A name and that, therefore, they will contest by-elections as MDC-A.

But this nonsense could be upheld by a captured judge or court. The fact of the matter is that the MDC-T cannot, as a party, have two names or two symbols. As a name, the MDC-A is not the property of the MDC-T, but of a conglomeration of parties that signed an electoral pact as "a composite political cooperation agreement" and agreed to use the name "MDC-A" together as one.

These parties are MDC, represented by Welshman Ncube, PDP, represented by Tendai Biti, TZ, represented by Jacob Ngarivhume; ZimPF, represented by Ar Agrippa Mutambara; MCD, represented by Mathias Guchuchu and Zanu-Ndonga, represented by Denford Musiyarira.

The time has come for these parties and their leaders to stand up to Mwonzora's MDC-T and put a stop to the CIO pretence that the MDC-T is also the MDC-A.

If the other parties do not stand up to Mwonzora on this, they too will be seen as extensions of Zanu-PF.

Even so, and anyhow, it is also a fact that as a name, the MDC-A is not inclusive enough beyond the pre-2018 election scenario.

For all intents and purposes, the name represents a re-unification of a divided house that once stood as one.

Clearly, some thought should be given to the need to forge a true national alliance, a truly broadbased coalition of progressive forces across the political divide, based on the Citizen's Convergence for Change initiative.

A dangerous trap for the MDCA to watch out for is inherent to the fact that the MDC-A name is being contested in the courts and in Parliament.

Because of that, and without giving up the name, the MDC-A leadership should find a robust and dynamic strategy for contesting by-elections, should they be held.

As already intimated, by-elections for constituency MPs must be contested. Mwonzora and his CIO cabal must not be given a free pass.

Under what name, then, should the MDC-A contest the by-elections.

Rationally, and strategically, given the dynamics at play the MDC-A should not contest any byelection as a party whether under the MDC-A name or under any other name.

Doing so would fall into the dirty hands of Mwonzora and his CIO handlers.

The recalled constituency MPs, or any other MDC-A candidate, should contest as MDC-A independents, of course with the support of the MDC-A, whose leadership should campaign for the independents.

Their logo, as MDC-A independents, can have the Chamisa portrait.

What is important is to avoid contesting the by-elections as the MDC-A or as a rebranded party under a new name.

The reason Mwonzora and the CIO are threatening that the MDC-T will contest the by-elections as MDC-A is because they want to force Chamisa and the MDC-A to rebrand and assume a new name, so that they will end up in Parliament with only 12 or 18 MPs under the new name.

That would make the party with a new name the third and smallest party in Parliament.

Any rebranding coming out of the Citizen's Convergence for Change should not, under any circumstance, be for purposes of byelections but should be forward looking, towards the next general election.

Whereas right now Mwonzora and the CIO ferrets are turning on the heat against the directly elected MDC-A MPs in the National Assembly, forcing them to adopt a situational strategy that makes them MDC-T by day and MDCA by night; the fact of the matter is that as the clock ticks-tock closer to 2023, all rational opposition MPs in Parliament will ditch Mwonzora and his Zanu-PF linked MDC-T.

They will just flock away from Mwonzora. About this, there is no doubt.

Once the moment of reckoning comes for the sitting MPs, to become election candidates for 2023, Mwonzora and his MDC-T will become a losing proposition just like Thokozani Khupe and her MDCT were ahead of the 2018 general election.

This is as certain as the fact that the sun will rise tomorrow.

As things stand now, Mwonzora is the Zanu-PF created leader of the opposition in Parliament, while Nelson Chamisa is the people's chosen leader of the opposition in Zimbabwe, in a position to form an alternative government.

It is this reality that, going forward, should shape the MDC-A's strategic thinking and praxis.