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Chamisa's facial image belongs to CCC founded by MDC Alliance

19 Dec 2023 at 13:37hrs | Views

THROUGH ONE OF THE LEGION OF THE LAWYERS acting for him and his beleaguered party, Nelson Chamisa yesterday sent a frivolous propaganda letter to the Zimbabwe Electoral Commission [ZEC] dated 18 December 2023, asking the electoral body "not to accept any nomination papers" with the image of his face save for the names he has personally authorised.

The letter is frivolous propaganda because Chamisa and his lawyers ought to know that ZEC is a rule-bound constitutional body which, in terms of section 239 (a) (iv) must conduct elections "efficiently, freely, fairly, transparently and in accordance with the law".

Tellingly, the frivolous propaganda letter is not based on any law and it does not cite any law, a fact which exposes its propaganda purpose and objective, as it is meant for the political gallery in the public domain, and not for ZEC.

The letter makes this strange submission to ZEC:

"We are advised that in June 2023, he gave consent to specific candidates from the political party he leads, to use his face image as a logo in the harmonized elections held between 23 and 24 August 2023. Those who were granted permission to use the image of his face had their nomination papers, as more fully appears in your records, signed by the names appearing in a letter dated 15 June 2023 and received by yourselves on the same day. A copy of the said letter is attached hereto for your ease of reference.

We are advised that some individuals, other than the individuals mentioned above, have resorted to misappropriation of the image of our client's face for purposes misrepresenting and misleading the electorate. We advise that this is illegal and fraudulent, to the extent that it is being done without our client's express or implied consent.

Our client has a reasonable apprehension of fear that the same individuals might want to fraudulently use the image of his face on their nomination papers for purposes of submission to your office.

We have been instructed to advise, as we hereby do, that you do not accept any nomination papers with the image of our client's face save for the authorized names aforementioned".

In effect Chamisa wants ZEC to treat his face image as some kind of a prohibited symbol.

But prohibited symbols are covered under section 146 of the Electoral Act, and there's nothing there that helps Chamisa's case whatsoever.

Although that Chamisa does is merely to write a "Dear ZEC" letter which is no different from a "Dear Auntie Rhoda" letter.

A letter is not law, worse a letter that does not cite any law to make its case.

In terms of section 239 (a) (iv) of the Constitution, ZEC must conduct elections:

…efficiently, freely, fairly, transparently and in accordance with the law.

As pointed out, Chamisa's letter cites no law.

In any event, Chamisa took a bad decision way nack on 22 January 2022 to allow the National Council of the MDC-Alliance, on the advice of its National Executive Committee that had met the previous day on 21 January 2022, to have the image of his face as the "trademark" of the CCC.

It's common cause that the trademark was published in the intellectual property gazette way back.

As such, Chamisa's face image is factually and legally the property of CCC, which was constituted by the National Council of the MDC-Alliance on 22 January, and which was unveiled by members of the MDC-Alliance's Standing Committee on 24 January 2022; and is thus, by law, under the custody of CCC's interim secretary general, Sengezo Tshabangu.

Chamisa's face image, used together with the letters "CCC", and the words "Citizens Coalition for Change, is in any event a common law mark whose proprietor is the CCC constituted by the National Council of the MDC-Alliance on 22 January 2022.

As published, and as previously used by CCC candidates since 24 January 2022 at the Nomination Court for the 26 March 2022 by-elections; through to the Nomination Court for the 23/24 August 2023 harmonised general election; and the Nomination Court for the 9 December 2023 by-elections; and yesterday at the Nomination Court for the 3 February 2024 by-elections, the mark is the property of the CCC, as outlined above, and not of Chamisa.

Of course if, following his announcement about the formation of a new CCC on 23 September 2023, Chamisa now has other ideas, he knows that he should not write a "Dear Auntie Rhoda" type of letter to ZEC, but he should go to court, where his claims would be properly challenged in terms of the law!

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