CHAMISA, KHUPE : THE LEGAL FIGHTS
Expelled MDC deputy president Thokozani Khupe has commenced a multiplicity of actions in the High Court and Constitutional Court (Con-Court) in her desperate bid to dethrone Nelson Chamisa whose entry in the presidential race as the new MDC leader has ignited interest in the impending polls.
Court papers filed in the High Court by Khupe under case number HC1051/18 have set tongues wagging, with rivals alleging the 54-year-old filed a wrong party constitution, edited to suit her contention that she was the only deputy president of the MDC at the time the party’s founding leader, Morgan Tsvangirai, succumbed to colon cancer on February 14.
Following Tsvangirai’s death, the opposition picked Chamisa as its new leader and presidential candidate, but Khupe and her allies accused the 40-year-old of a power grab, and have also refused to recognise his leadership.
Chamisa was then forced to approach the High Court in Bulawayo seeking an interdict to stop Khupe and her allies from continuing to infringe on the MDC trademark, passing off as the party leader, and using the MDC name without the authority of the opposition party.
Judgment in the Bulawayo High Court was reserved to Tuesday next week while deputy Chief Justice Elizabeth Gwaunza conducted a hearing yesterday to determine the urgency of Khupe’s Con-Court case.
The case in the Bulawayo High Court is important in that Zimbabwe Electoral Commission chairperson Justice Priscilla Chigumba made it clear that she will not be entertaining confusion where more than one party uses the same name and symbols and that any such dispute must be resolved by the courts before nomination day.
The court battles were triggered by the decision by the MDC’s national council to dismiss Khupe, organising secretary, Abednigo Bhebhe, and national spokesperson Obert Gutu.
Up to this day, none of the three; Khupe, Bhebhe and Gutu have challenged their dismissal from the party either through its appeals procedures or through the courts of law.
While Khupe was in the Bulawayo High Court arguing her case to continue using the MDC name on Tuesday, she had on the same day filed a Con-Court application challenging her recall from Parliament.
In Con-Court case number 21/18, Khupe filed another version of the MDC constitution, which is the same as that filed by Chamisa and his camp in their High Court case in Bulawayo.
The Con-Court application by Khupe is seeking to reverse her recall from the MDC.
The party constitution filed by Khupe in the High Court under case number HC1051/18 was countered by the MDC, which filed a charter that had been endorsed by its national council at the City Sports Centre in Harare at its October 31-November 1, 2014 congress, and signed by the late MDC president, Tsvangirai.
This constitution was subsequently upheld by High Court judge Justice Lavender Makoni in a matter brought by MDC members Patson Murimoga and George Rice in July 2016 where the duo were challenging the appointment of deputy presidents Chamisa and Harvard-trained engineer Elias Mudzuri by Tsvangirai in July 2016.
Observers said Tsvangirai’s decision to elevate Chamisa and Mudzuri to the vice presidency was meant to neutralise the influence of Khupe, who was opposing the then cancer-stricken and ailing MDC leader’s opposition alliance legacy project and was also seen as move to put in place his preferred succession plan.
Justice Makoni found that: “What is clear from the constitution attached by the applicants (Murimoga and Rice) is that as it is, it is not validated by the national council and signed by the president of the fifth respondent (MDC). The applicants have therefore relied on the wrong document for the claim.”
It is the same constitution that Khupe filed in the High Court in Bulawayo, giving rise to speculation that she could have sponsored Murimoga and Rice in their High Court action against Tsvangirai.
It is understood the High Court application challenging the appointment of Chamisa and Mudzuri infuriated Tsvangirai, and significantly contributed to the bad blood between them.
Khupe’s lawyer Lovemore Madhuku acknowledged there was an error arising from the fact that Khupe used two sets of lawyers to argue her High Court and Con-Court case.
While Madhuku is arguing Khupe’s case in the Con-Court, the expelled MDC deputy president has retained Bulawayo law firm TJ Mabhikwa and Partners to argue her case before High Court judge, Justice Martin Makonese.
“Perhaps there is a mistake which can be corrected. It’s an error that can be corrected. We will then have to see kuti zvakamira sei (will attend to it in due course). It’s also that there are different lawyers dealing with this. They filed from the Bulawayo office, and then we also filed from here. In Bulawayo, I went as an advocate instructed by the lawyers in Bulawayo,” Madhuku told the Daily News yesterday. A legal expert said this was unprecedented.
In the legal profession, the legal expert who declined to be named said the confusion arising out of this was referred to as court farming whereby a litigant files a multiplicity of cases seeking a similar relief hoping to get favour in one of the courts.
“It’s like rolling a dice,” said the constitutional law expert.
Jameson Timba, who is coordinating the MDC challenge against Khupe, told the Daily News: “We are before the High Court in Bulawayo to seek an interdict against three expelled members who are infringing our trademarks and passing off as MDC-T leaders by exploiting our registered trademarks. We are not before the courts to determine who is the president of the MDC-T because that issue was laid to rest by the body, which is clothed with the capacity to select a leader for our party. The body, our national council, is the highest decision-making body in between congresses. We are a voluntary organisation and no court has jurisdiction to select or elect our leadership. We do that ourselves.”
Notwithstanding proceedings pending in the Bulawayo High Court, Khupe is proceeding to convene an extraordinary congress in Bulawayo today which, in terms of the MDC constitution can only be convened by its national council.
According to the MDC constitution, the national council gives the secretary-general power to begin the administrative work to convene congress.
Gutu, the spokesperson for the Khupe-led MDC, said the extraordinary congress today was being held in accordance with the provisions of Article 9.21.1 of the MDC.
“There is no court order to interdict the holding of the extraordinary congress and as such, the convening of the extraordinary congress is perfectly lawful, legitimate and constitutional. The relevant notices for the holding of the extraordinary congress were triggered by acting president … Khupe in terms of the party constitution. The purported expulsion of myself, Khupe and Bhebhe are a nullity and as such, there is no need for us to challenge purported expulsion that is void ab initio (from the beginning).
“We don’t recognise a bogus and illegitimate ‘president’ who usurped power through an illegal coup de tat. In equal measure, we don’t recognise a bogus and illegitimate ‘national council’ that usurped the powers of the lawful and legitimate organs of the party,” Gutu told the Daily News yesterday.
He said the Con-Court application by Khupe is seeking an order to set aside her unlawful recall from Parliament.
“A bogus and illegitimate ‘president’ of the MDC as well as a bogus and illegitimate ‘national chairperson’ has got absolutely no legal authority to recall Khupe from Parliament,” Gutu said.