Analysis: The recent SC Judgement raises so many questions in jurisprudence. This is because there is a lacunae in the laws regulating the practice of internal democratic processes of political parties. Since political parties are voluntary organizations their formation is not regulated by law. All they have to do is to come up with their own Constitutions and rules of conduct. The parties themselves administer their own rules and procedures in terms of their own Constitutions. Burial Societies and religious organizations also have their own Constitutions. This poses a serious problem in circumstances where a member feels wronged and seeks redress in Courts.
There is no Statute that judges can refer to in order to determine that an internal wrong has been done to a member who belongs to a political party,unless it relates to violation of rights in terms of the National Constitution. In Zimbabwe the Courts are only relevant in dealing with intra party disputes in so far as the National Constitution is violated. So the courts can use the National Constitution to protect the right of an aggrieved party member because the National Constitution is the supreme law of the land. Unless there is a criminal element in the conduct of party affairs, courts cannot have a loci standi in internal party politics. So apart from relying on the National Constitution, the Courts have to rely on Common Law to interpret the grievances of a wronged party member.
There lies the problem with the Supreme Court judgement. Common law is fluid and depends on one’s beliefs and value system or even political preferences. The interpretation of Common law is subjective because it is not written law. That’s why the SC judgement could not address the expiry of terms of office of the 2014 MDC T Structures in November 2019. That is also why the SC judgement did not address the natural existence of the MDC Alliance by right of Association and as well by its own processes that consummated the MDC Alliance. All that could not be addressed at law. Moreover, in Zimbabwe, political parties are only required to write a letter informing the Zimbabwe Electoral Commission about their existence for purposes of contesting an election. Once a party registers its presence with ZEC and contests elections it qualifies to be called a Political Party. Moreso, if it fields candidates and deploys MPs and Cllrs in Parliament and Local Government, respectively. This is the case with MDC-T and MDC-Alliance. But as for the MDC Alliance the party qualified to receive funding in terms of the Political Parties Finance Act on account of its 79 MPs as opposed to MDC-T’s 3 MPs.
The other complication of the SC judgement arises when you consider the fact that Congress can only be called after the relevant organs of the party have met and resolved to go to Congress.
The President or National Chairman of a party have no powers in their official positions to order Congress. In the case of the MDC -T only the National Council can make a resolution for Congress to be held. Looking at the composition of the National Council even as it was in 2014, the majority of its Members are now in MDC Alliance party and so is the National Executive and National Standing Committee.
Even Common law could not deal with these practical realities of the SC case and its ruling. In the case of Bhasikiti (Zanu PF), who was in the same circumstances as Mashavira(MDC-T), the Courts dismissed his case and ordered him to exhaust party’s internal remedies. Whereas in Mashavira’s case the Courts entertained the case and made a ruling in favour of Mashavira. This raises a lot of jurisprudential questions.
As the learned judges of the SC rightly pointed out, the Mashavira case wa MOOT which means it is academic.
In Conclusion, at present, there is a legal lacunae in regulating intra-party problems and internal party democracy. Apart from the National Constitution, the Courts can only be guided by Common Law which is subject to personal prejudices and biases. In this regard,the SC judgement raises many questions in Jurisprudence. May be members who are wronged by their parties can seek redress and better relief in civil courts if there is a material interest. The SC judgement will remain the subject of research and commentaries by practitioners and law students for many many years to come.
Dr Tapiwa Mashakada: BSc Hons Economics (UZ), MSC in Economics(UZ) Diploma in Economic Policy Strategies(Williams College) Diploma in Personnel Management(IPMZ), PhD in Economics(Stellenbosch), LLB Unisa student