MDC has turned to top lawyer Thabani Mpofu to lead its appeal against a High Court ruling which declared as illegitimate its leader Nelson Chamisa.
Mpofu yesterday confirmed he was now taking the lead in the case, assuring the MDC faithful that the youthful leader’s presidency was not in danger and that the High Court ruling poses no threat to the party’s planned congress.
“I have been briefed to take up the matter,” Mpofu said.
“I have studied the judgment together with Advocate Sylvester Hashiti and Keith Kachambwa with the most undaunted minds and have been exceedingly intent upon its subject, taking it up seriously with determination to bring the matter to a desired outcome.”
He added: “There are at least 11 aspects of fundamental concern that we have identified. Our path is both sure and clear,” Mpofu said.
Mpofu represented Chamisa in his Constitutional Court (ConCourt) challenge against President Emmerson Mnangagwa’s electoral victory last year, but lost the televised case after the full ConCourt bench ruled that the opposition leader’s counsel did not present satisfactory evidence to have the elections nullified.
The MDC has already said that it fundamentally disagreed with Justice Edith Mushore’s judgment with some party hawks claiming it was unenforceable.
Yesterday, a party insider said lawyers have since advised the MDC leadership that it would be impossible for the party to go for an extraordinary congress with structures whose term of office have expired as per the party’s constitution.
“What is clear is that congress is due and it will be held. Going to an extraordinary congress would require the party structures elected in 2014 to convene and elect a president of the party, yet their own mandate
in terms of the same constitution has expired. They, therefore, do not have the right and power to represent the party in their current form,” the source said. The lawyers, according to the insiders, also advised that the party in Parliament and led by Chamisa is MDC Alliance and, therefore, the ruling does not have effect to the party going to congress.
The lawyers observed that the ruling does not call on former MDC deputy president Thokozani Khupe to come back at Morgan Richard Tsvangirai House.
“If an extraordinary congress is to happen, it has to be called for by the party and not an individual, therefore, the second in line would be then chairman of the party Morgen Komichi, together with secretary-general Douglas Mwonzora and this has already been done,” the source said.
Khupe, whose party held its own extraordinary congress last year and was a presidential candidate in last year’s elections, has already welcomed the judgement and claimed she was ready to come back and lead the MDC.
But lawyer Valentine Mutatu said Khupe cannot purport to benefit from a judgment which she was not party to.
“Khupe did not even go to court yet she was a respondent. Relief is not granted to a person who has not sought it. She, therefore, cannot purport to benefit from this judgment. She could at least have gone to court and said she would be bound by the ruling of the court, but she did not,” Mutatu said.
Tapiwa Shumba, a senior law lecturer, advocate of the High Court of South Africa and associate editor of the Speculum Juris Law Journal, yesterday said the judgment had no effect on the party’s congress plans because it had a net effect of removing someone who is no longer president because congress processes have begun.
“Thus, circumstances have altered so much so that this judgment has become moot. It is a moot judgment. It is a brutum fulmen – an empty noise; an empty threat. A judgment void upon its face which is in legal effect no judgment at all and by which no rights are divested and from which none can be obtained and neither binds nor bars anyone,” Shumba said. He said the ruling was academic.
“The court orders the MDC as a party to convene an extraordinary congress, which means the national council of the MDC must convene the congress,” he said.
“The problem is on enforcement. How does the court enforce its own order? If the national council of the MDC does not sit and/or convene the congress what will the court do? Nothing?
Well, it can convene it itself, but who will attend? What if the national council convenes the extraordinary congress and tells MDC members not to attend? Surely, it cannot hold all the national council or congress members in contempt of court. The court can declare something as null and void, but making an order of specific performance that it cannot enforce is pointless.”