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ZANU PF court challenge vs MDC court challenge

09 Nov 2021 at 19:37hrs | Views
There is an interesting case between the 2018 MDC court case and this ZANU PF case that is in front of the courts right now, while these cases look similar in the eyes of many there are major differences that have a significant impact on the decision of the courts here. Am going to highlight those in this article.

According to Section 9.21 of the MDC-T constitution, in the event of the death or resignation of the president, the deputy president assumes the role of acting president, pending the holding of an extraordinary congress to elect a new leader. However, l have been going through the ZANU PF constitution and l didn't find any clause which deals with the situation that the party faced in 2017 and what it means is that common sense is the only deciding factor. While the MDC constitution is clear on what was supposed to be done after Tsvangirai's death, the same is not true for ZANU 2017 event that was something new and wasn't in the constitution. Moreso the ascendancy of Chamisa and Mudzuri were never adopted in the constitution as was planned which left only Khupe as the legitimate VP of MDC-T.

The MDC constitution has a clause for an appeals tribunal that exist inside party protocols, this clause is more or less the same as the one in ZANU which requires every party cadre to utilize internal processes before approaching the courts. This clause in ZANU means two things its means that Msengezi has fired himself by failing to follow party procedures in airing grievances and the second thing is that this clause is a defence in the proceedings.

The other difference also is that when the court proceedings began back then the MDC didn't take the proceedings seriously and did not even respond to other issues but now we have ZANU PF which have rushed to respond to the petition meaning it's taking the challenge seriously and the unfortunate part is that the G40 team cited by Msengezi is not willing to be involved in this case, for example, Chombo failed to file his respond and Mphoko too is on his way to the same as the dis inducia is only 5 days away. What this means is that the G40 cabal which Msengezi's case leaned on mostly have shown an unwillingness to support him and that's a big blow to his case.

The other thing is that this Msengezi is too talkative he has been giving interviews to many media houses pre emptying his case and in so doing thus exposing the strength of his case and giving the opponent time to draft a strong response, even if this immunity defence fails ZANU have already calculated the next step based on Msengezi blubbing.

The most important thing to note is that ZANU PF went to its Congress well before the elections and in that congress, they chose ED as their candidate for 2018 that alone sanitized the meeting which Msengezi seeks to nullify meaning that even if that meeting is declared void there will be no ground to nullify the congress held in 2017 by ZANU which endorsed ED as party President till their next congress in 2022 which means ED participation in 2018 was according to the party's constitution even if his appointment as caretaker President from 2017--18 is declared void. On the other hand, Chamisa took power unconstitutionally(in that he did not convene an extraordinary congress before the election) and he went to election without doing anything to sanitize such illegality until May 2019 when they went to congress which was way too late as per Clause 9.21 of their Constitution.

The last determining factor is the willingness of the Judiciary to pass a ruling which will have disastrous consequences. The S v Banana case has shown that Superior courts cannot be bound by their previous rulings and rules. This means the supreme court or constitutional court has the power to pass any ruling without being bound by its previous rulings. In the 2013 Tsvangirai v Mugabe case, CJ Chidyausiku said the election residue were not of that importance but in the 2018 Chamisa v ED case Malaba said election residue was important which shows how the superiour courts are not bound by their previous decisions. These Superiour courts have powers to determine anything that they may deem necessary in the interest of justice so l ask everyone reading this post right now "IS IT IN THE INTEREST OF JUSTICE AND THE NATION THAT ED BE DECLARED ILLEGITIMATE"???,l believe the consequences will be serious and no judiciary in this world would want to entertain such. l have learnt over the years in my experience that no judiciary under the world is independent maybe we can talk of the degree of dependence, the way Trump petitions were thrown out in the US showed us a lot from a country that we look to as a model of democracy.

l could have kept on and on but what you and me know is that this petition is not solid but just receiving support from some of us who want to see ZANU PF going which is not bad coz it is a democratic choice to see ZANU going, however, my great concern is that l have seen lawyers who have lost their objectiveness coz they ceased to be objective lawyers and become supporters of our opposition, the likes of Mpofu and Magaisa their legal advice can no longer be objective as they have joined MDC and are now in the same position as Biti and Chamisa you cant be a lawyer and judge in your own case, there is need for our opposition to approach independent lawyers the likes of Madhuku, Uriri and Hashiti among others.

The views l have expressed here are a presantation of my views and are subject to debate, rejection, or acceptance in part or whole and any feedback is also welcome.

Source - Kumbirai Stein Chivhuna
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