BY DR MASIMBA MAVAZA | Zimbabwe has but to lament the politicization of our justice system. If a decision does not please one political party it is quickly labelled a political decision. It is sad that even renowned lawyers like Tendai Biti rushes to the twitter and wilfully mislead the public. Firstly the courts must never interfere into internal politics of a political party or any club, unless there is a flagrant disregard of the law. If there is such blatant disregard of your own constitution the court will and has the right to order you to follow your own constitution. Looking at more recent appointed judges, all extremely well qualified for the Court it is an insult to them to say their decision was strictly on party lines or close to it and that doesn’t make any sense. If that happens then that suggests that the process is being used for something other than ensuring the fair execution of justice.
The Court underscored its power to shape Zimbabwean life when it took major cases about the internal conflicts of political parties. But this is not simply a case of the court thrusting itself into politics. It is a case of the political parties demonising the courts even if there is no reason to do so.
The way these cases developed and made their way to the highest court also illustrates the reverse — how politics shape the court. Each case grows out of a struggle between left and right where politics have pushed the law: between a quest for universal coverage and the members of the party, between an emphasis on openness and hostility toward another party and between a promise of access to justice and the unyielding opposition to keeping that promise.
Each party has its program and works to turn it into law. But it becomes unfortunate once that party approaches the court for intervention.
To start with the case of the illegality of Chamisa and Mudzuri was never settled at court. The high Court dismissed a law suit challenging MDC T Leader Morgan Tsvangirai’s appointment of national executive members Advocate Chamisa and Engineer Elias Mudzuri as party co-vice presidents. This was the case cited as Murimoga v MDC T. In his decision Justice Hlekani Mwayera decided the matter on preliminary points which were raised by Thabani Mpofu Advocate who acted for MDC T.
The reason for the decision was that 1. The applicants had no right to bring a case against MDC as they were not paid up members of the party. This is known in law as legal standing, or locus standi in judicio. The court accepted that and threw the case out. There was no going dip in the merits of the case as brought in by the applicants. So to say the case was decided is totally misleading and as always Biti and MDC are walking on a tighter rope and bordering on the lines of contempt.
The reality of the matter for Chamisa must be read in the statement of Tsvangirai himself after the decision of Justice Hlekani Mwayera, he said the promotion of the two was meant to help him run the party as the country prepares for 2018 elections. According to Tsvangirai the appointment was not permanent but a temporal measure which would be sorted after elections. Unfortunately Tsvangirai dies and Chamisa rode on the dead man and jumped on his grave and took over the reins with the advice of Biti and Job Sikhala. His actions have brought the case to where it is now.
This appointment angered a lot of MDC T bigwigs who felt that Tsvangirai was wrong in handpicking his blue eyed boys to the lofty position ahead of the rest in the contest to succeed him.
Tsvangirai had breached Article 6.4.1 of the MDC T constitution and did not empower the council or the party president to appoint a deputy president.
So for any MDC T or A member to say that the case was decided by Justice Mwayera is outright lies and misleading.
The love for power by Chamisa has made the MDC look like a dog’s breakfast. Now the ruling by the court today which nullifies the appointment of Nelson Jigis Chamisa and Elias Mudzuri as vice presidents opens people to speculate that “a sharply political, divisive hearing process” increases the odds that justices are seen as partisans it’s a very unfortunate impression the public might get from the comments by MDC A. Despite the allegations by the MDC A the High court record belies the Chief Justice’s claim of political neutrality on the part of the Justices. But on most issues over which there is sharp political division in the country, the Justices’ positions reflect the politics of the presidents who appointed them.
This is not to say the Justices see their role as promoting the agenda of one political party or the other. We can safely assume that there are not party caucuses among the judges. But the Justices do have political views and those views matter in much of what the Court does.
The political views of the Justices matter because they themselves have established and perpetuated constitutional doctrines and interpretive principles that require courts to make political choices. Particularly over the last several decades, the High Court has put itself and other courts in the position of having to resolve cases by making some of the hard political decisions left by the framers to the legislative and executive branches of government.
This politicization of the work of the courts is the product of the Supreme Court’s creation of an array of balancing tests and what it calls levels of scrutiny. In other words, legislation and administrative actions will be presumed to be constitutional unless particular constitutional prohibitions are violated or the Court finds that the political process has produced undesirable results as a consequence of the lesser political influence of particular groups of people. The Court, not the Constitution, will determine which constitutional prohibitions and what groups warrant special consideration and what legislation is undesirable.
The legitimacy of the courts depends on their strict adherence to the rule of law. It might be argued that judicial application of a three part balancing test is the rule of law, but when courts effectively declare that the law is what they say it is, it is difficult to take their claim of allegiance to the rule of law seriously.
The reality is that there is much at stake for both parties. Many decades of balancing jurisprudence have assured that who sits on the nation’s highest court matters to the most fundamental concerns of the nation’s political parties and special interests. Unless and until our courts can find a way to restore the rule of law to their own work, we can expect that a politicized confirmation process will long survive the tenure of political parties.
The decision by the judge Mushore was that Tsvangirayi acted unconstitutionally by appointing Chamisa and Mudzuri. Therefore the appointment is now invalid as of now as it was then. This then meant that the appointment of Chamisa as an acting president was unconstitutional as its beginnings were tainted by illegality.
As is expected in the political parties or organisations the court can only rule that the party be bound by its law. So the judge then ordered MDC T to hold an elective congress as a matter of urgency.
There is nothing wrong with this judgement and the judge did not descend into the arena, neither was the judge blinded by the dust of the players.
The outcry against the judgement is misdirected. Looking at the case on the round MDCA or T will have to show the world that they abide by the rule of law. Chamisa has been an illegal; leader all along and has no right to even claim any victory in the elections he lost. Even if he had won the elections which he did not he would have been disqualified by this ruling?
This is the time Chamisa must make things right and see through a congress. Since there is a congress penned for this month it will be in order that the congress be allowed to proceed and that Mwonzora as the Secretary General presides over the Congress.
In recent years most democracies have faced the problem of undemocratic political parties. In other countries undemocratic political parties will be banned, but Zimbabwe had allowed MDC T to trudge along in the illegality they enjoyed. Chamisa forgot the saying that when in a glass house does not throw stones. Political parties must be democratic not only externally, in their goals but also democratic internally, in their organizational practices. The very interdependence between political parties and democracies should promote the parties adherence not only to democratic goals and activities but also to democratic internal structures, such internal democracy must be mandatory and the courts must enforce fairness where internal democracy is thwarted.