FORMER Constitutional and Parliamentary Affairs minister Eric Matinenga advised the MDC leadership to ensure contestations for power which ensued following the death of founding party president Morgan Tsvangirai in February last year should be within the parameters of the constitution, but his advice was not heeded, it has emerged.
Matinenga gave the legal opinion after being approached by MDC secretary-general Douglas Mwonzora to interpret the party constitution and advise on the way forward after Tsvangirai succumbed to colon cancer in South Africa on February 14 last year.
The legal advice was written on February 28, a fortnight after Tsvangirai’s death.
This comes as the High Court declared Nelson Chamisa an illegitimate leader of the MDC on Wednesday and ordered the party to convene an extraordinary congress after a month using structures which were put in place in 2014.
However, MDC officials close to Chamisa yesterday swiftly dismissed the Matinenga memo, saying it was not a legal opinion sought by the party but a document done for Mwonzora and his faction.
Chamisa and his allies see Mwonzora as the brains behind the High Court application to scuttle Chamisa’s ascendancy at the impending congress. Mwonzora has dropped out of the race after being overrun by Chamisa
The uncanny resemblance between Matinenga’s memo and the High Court ruling, Chamisa’s allies say, as well as the fact that the judgement was known to Mwonzora and others well before it was delivered showed there “political shenanigans at work”.
“The so-called memo and the legal advice therein were not an MDC document, but a paper done for Mwonzora by his ally Matinenga as they sought to map the way forward after Tsvangirai’s death,” a Chamisa ally said.
“It was not a party document, but a factional memo which was never tabled for discussion within the MDC decision-making structures. So we view it as self-serving document used to push a factional political agenda in the party and through the courts as we witnessed this week. That is why it closely resembles the High Court ruling — which is strange, yet not surprising — that was delivered this week on the MDC leadership issues.”
Chamisa took over as MDC president in controversial circumstances last year after he outmanoeuvred his then two co-vice presidents, Thokozani Khupe and Elias Mudzuri, during a vicious fight which played out at a time when Tsvangirai was on his deathbed in South Africa.
Khupe was elected at the MDC 2014 congress, while Chamisa and Mudzuri were appointed by Tsvangirai in 2016.
Relying on charisma, popularity and backing of militant party youths, Chamisa managed to outfox the Khupe camp, his main rival then. There were threats and violent clashes during the political battle for Tsvangirai’s mantle.
But no sooner had Khupe left to form her own party — which has already held an extraordinary congress to elect her leader — and contest the presidential election alongside Chamisa against President Emmerosn Mnangagwa than a fresh challenge emerged, this time coming from Mwonzora. Mudzuri also became a rival.
According to Matinenga’s document, in terms of the party’s constitution Khupe was supposed to take over as interim party leader at the material time pending an extraordinary congress within a year to elect Tsvangirai’s successor.
Matinenga, a constitutional law expert and senior MDC member before retring from politics, also indicated Tsvangirai had acted ultra-vires the party’s constitution when he handpicked Chamisa and Mudzuri to be co-vice presidents with the elected Khupe.
Matinenga confirmed the memo to the Zimbabwe Independent yesterday, but declined to comment, saying it was confidential.
“I don’t know where you got it. A memorandum of advice is a confidential document which belongs to the client and it is not for me to comment on it, so ask the client,” he said.
In his memo, Matinenga warned the MDC leadership against settling the dispute between Chamisa, Khupe and Mudzuri on the basis of the former’s popularity, saying they should stick to constitutional provisions.
“At the time of Dr Tsvangirai’s death, three functionaries described themselves as vice-presidents. They are Dr Khupe, Engineer Mudzuri and Advocate Chamisa. Dr Khupe was elected at the party’s congress held from 30 October to 1st November 2014. Engineer Mudzuri and Advocate Chamisa were appointed by the late Tsvangirai in 2016. The death of Tsvangirai has created a leadership dispute in the party. Each of the three functionaries says he/she should be acting president,” Matinenga wrote.
“The dispute is now in the public domain. Advocate Chamisa refers to his appointment/election by the party’s national council. Dr Khupe refers to her election at congress in 2014. Engineer Mudzuri (not as vocal) refers to his appointment by the late Tsvangirai before his hospitalisation in South Africa and his subsequent death. I am asked to advise on whether Article 6.4 (of the MDC constitution), which sets up the national council has power to appoint/elect a president outside provisions of 9.21.”
Article 9.21 of the MDC constitution states that in the event of the death or resignation of the party’s president, the deputy president assumes the role of acting president pending the holding of an extraordinary congress that shall be held specifically to elect a new party president.
The section further stipulates that the extraordinary
congress is to be held no later than a year from the death or resignation of the former president.
Matinenga said the MDC national council had no power, according to the party constitution, to appoint the party president.
“Article 9.21.1 is very clear. The only deputy president must be the one elected by congress. It is an undeniable fact that one deputy president was elected in 2014. To suggest that more than one deputy president was being referred to creates a factual absurdity as only one deputy president was elected. The two deputy presidents appointed in 2016 cannot lay claim to the deputy presidency in terms of the constitution. They were not elected at congress,” he said.
“The national council implements policies of congress, it does not originate the same. Its powers to elect, reappoint or reassign is limited. It cannot interfere with functionaries directly elected at congress. The party’s constitution is clear on who should be acting president, it is Dr Khupe. The national council does not have power or authority to say otherwise.”
Matinenga added: “The advice set out above appears to set the stage for a bruising fight between the constitutionalist, Dr Khupe and the majoritarian, Advocate Chamisa. It is important that Dr Khupe, Engineer Mudzuri and Advocate Chamisa find each other. None is dispensable. Any suggestion that any of the three is dispensable is politically naïve. Such a naïve political stance will set opposition politics and multi-partyism backwards.
“The error being made here is to choose either constitutionality or majoritarianism. In this particular case, the two are not mutually exclusive. An extraordinary congress will merge the two positions. It will answer both the constitutionality and majoritarian arguments. It will provide, once and for all, the legitimacy to whoever is elected. The contestations for power must be exercised within the parameters of the constitution.”
Matinenga also reasoned that the excuse that the party did not have funds to hold the extraordinary congress was immaterial since it could be held in a few hours.
Chamisa’s backers dismissed the document, saying it was done at the insistence of Mwonzora, and therefore was a factional, not an MDC document.
“It is not our document. It didn’t reach us. The document was not done for the MDC as a party. Matinenga is not an MDC lawyer; our lawyers are Innocent Chagonda and Thabani Mpofu. If we are not using those, we work with Alec Muchadehama. So as far as we know, Matinenga is an ally of Khupe and Mwonzora and it could only have been done as a report for those,” an MDC official said.
“In any case, we would not have consulted him because we know he is partisan and conflicted. After all, we have been working with senior lawyers throughout. Have you also noticed that the so-called legal opinion has striking similarities with the High Court ruling? This tells you what is happening here and the full story.”
Mwonzora declined to comment, saying: “What I can only confirm is that we sought the legal opinion, but I cannot add on that. Thank you.”
Khupe also said she could also not comment yet. “We will have a meeting soon to deliberate on the way forward and we will advise the public once we have that meeting,” she said.