MDC-T acting president Nelson Chamisa says his appointment is above board and insists that reservations being raised by his political rivals are personal.
The MDC-T national council, which is the top decision-making body outside congress, last week endorsed Chamisa as acting president of the party, just after the late president Morgan Tsvangirai's death. The meeting was boycotted by vice-presidents Elias Mudzuri and Thokozani Khupe among other officials.
"We have no time to look at personal arguments and wanting to arrogate them to be constitutional arguments, because they are not. Opinions of comrades are not resolutions. The party is bound by resolutions, the party is bound by organs not perspectives, not fictional imaginations and let this constitutional debate be clear to all and sundry who would care to listen that the MDC-T is perfectly constitutional," Chamisa said.
Section 9.21.1 states that 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 that shall be held to elect a new president. The congress should be held no later than a year from the death or resignation of the former president.
"Now it must be understood and appreciated that in terms of the MDC constitution we have three deputy presidents and these three deputy presidents are in terms of Section 220.127.116.11 of the constitution, far from the lie that has been peddled, that there is so-called elected and so-called appointed. It is not constitutionally backed; it is not legally backed. There is nothing in the constitution that says that there is a deputy president who was elected there is a deputy president who was appointed," he said.
"All the deputy presidents; the three of them, are a creature of the constitution either through congress in the case of Khupe because she was only one. But there was a vacancy that had to be filled in which position was then supposed to be filled in by the national council sitting as congress in line with the resolution of the party."
Chamisa said because there are three constitutionally derived deputy presidents, "the key question is that once the president demises or is not present, has died or has resigned, Section 9.21.1 kicks in, to make sure there is a deputy president who acts pending the holding of an extraordinary congress". The deputy president acts for 12 months within which he is supposed to convene an extraordinary congress.
"The national council because there are three deputy presidents, there is nobody that appoints an acting deputy president in the absence of a president except the supreme decision-making body in between congress which is the national council, in terms of its powers as articulated in Article 18," he said.
Article 18 states that: "In any place where the requirements of this constitution cannot be satisfied because of an omission or oversight in draughtsmanship, or because a body provided for has not been established, or an officer provided for in this constitution has not been elected or appointed, or because of a procedural problem; the national council shall have the power to make such arrangements which, in their opinion, satisfy the spirit of this constitution and shall seek approval for such arrangements at the next congress.
"That is what we did in terms of this article because it is not provided for how we arrive at a single deputy president in the event of three deputy presidents. So the national council chose one of the three deputy presidents to be acting pending the holding of a general extraordinary congress."
Chamisa said as a way forward there are two issues that are supposed to be tackled, and the national council has already pronounced itself that it does not want unnecessary and undue disturbance in the leadership.
"It's only some comrades who feel that they also want to be acting. But you can't act when you are secretary-general because the request was that let us open this whole thing so that we can also act. But we said it's unfortunate because it is specific the constitution says one of the deputy presidents," he said.
Chamisa said it is a "false argument" that Khupe is the one who should act since she was elected at the 2014 MDC-T national congress.
"It is an opinion. There is nowhere in the constitution which says Khupe or such and such has been elected as deputy president. It's not true. In fact, Khupe was simply nominated and not opposed at congress. There was never an election on Khupe's position and we must not mistake magnanimity of party structures for an election. It's not correct; it has no constitutional backing whatsoever," Chamisa said.
"Yes, she came through congress but congress also delegated its power to the national council to sit as congress to finish congressional business, of which part of the congressional business was to elect the other deputy president which is what was done so effectively. They even went to court challenging this issue and the court pronounced itself on these issues – the Murimoga challenge."
He said if there is any aggrieved member, their remedy is to go to the council and request an extraordinary congress.
He said calls by Mwonzora for a March extraordinary congress are the secretary-general's opinion, arguing that he does not have the powers to call for a congress.
"There are two platforms to resolve the issue of the candidate to the general elections: the national council can resolve the issue of the candidate though they have already said by operation of law it's automatic that the person who is acting can be a candidate. It can be resolved; if there are others who feel that there are better candidates the national council can still be seized with it. Or if there are others who feel that there has to be a substantive president, not an acting one, the national council can deal with it and it has to do so by a secret ballot in terms of Section 18.104.22.168(k) to replace the president," Chamisa said.
"If I am to be made a president I have to go there and if I am elected there I become substantive. So national council can, and under those circumstances you don't need an extraordinary congress until the next congress. Mind you the next congress is due in 2019. So it's a very important debate within the party to say do you need an extraordinary congress if you have a congress in 2019? Even if you are going to have congress, is it an extraordinary congress just for the president or for the entire standing committee, especially considering the fact that we are just a few months away from the actual congress in 2019."
Chamisa said people can choose their presidential candidate through platforms, through the national council, or through an extraordinary congress in terms of Section 6.2.5. Section 6.2.5 states that an extraordinary congress may be called: (a) by a simple majority vote of the national council or two thirds vote of the national executive which vote shall be conducted by a secret ballot; (b) Upon the written request received from at least one-third of the members entitled to attend the congress submitted to the secretary-general; or (c) Upon the written request received from at least two-thirds of the provincial councils submitted to the secretary-general.
Meanwhile, MDC-T deputy secretary-general Tapiwa Mashakada said it was not possible to hold an extraordinary congress between now and July when elections are due. He said according to timelines provided in the constitution, an extraordinary congress, a mandatory notice of two months is provided for all the mini-congresses, from branch to provincial levels.
"I therefore argue that a normal congress can only be constitutionally convened in December 2018 at the very earliest. It is only the national council which can resolve that an extraordinary congress be held," Mashakada said.
He said Chamisa shall stand as the party candidate unless the national council revokes its earlier decision.
Constitutional lawyer Alex Magaisa said succession battles in the MDC-T were more political than constitutional.
"From a strategic point of view, it is a copy of how the coup-plotters conducted themselves last November when (former president Robert) Mugabe was deposed," Magaisa said. "The constitution was sacrificed on the altar of politics and in both cases there was popular support. It is yet another example of the fact that when law and politics clash, often times the law plays second fiddle to politics."
Magaisa pointed out that it was important for all levels to embrace constitutionalism.
"For my part, while I believe popular opinion is critical, my view is that it must be expressed through and in accordance with clear rules that are set in advance. If Zimbabwe is to make progress, constitutionalism must be embraced at all levels – from the political party entity to the nation-state. It is important to do the right thing but it is also important to ensure that it is done in the proper manner," he said. "That Chamisa is a hugely popular choice is not in doubt and it would probably be futile to fight this politically. But it would help Chamisa's cause in the long run to make sure that the political is backed by the legal."
– Zimbabwe Independent