Zimbabwe: Boycotts Will Not Change Court Decisions

MDC Alliance has fallen into the strange trap of assuming that boycotts will change court decisions, a move that disenfranchises its supporters, ensures that its voice will not be heard when decisions are being taken, and will have zero effect on changing those court judgments.

This behaviour was seen in the last Parliament when MDC-T, the largest component of the Alliance, refused to contest in by-elections it had itself caused by recalling a batch of legislators elected in the 2013 general election following a revolt challenging the party leadership, even though most of the majorities it was defending were large enough to ensure that it would probably have won those seats.

After the Alliance was formed just before the last Presidential and general election two years ago, it again went the path of boycott when it refused to accept the result of the Presidential election and refused to accept a unanimous decision by the Constitutional Court (Concourt) when it challenged that decision.

So, we have seen the absurdity of MDC-A legislators boycotting events, including the opening of Parliamentary sessions, graced by President Mnangagwa. Yet it accepted that Zanu PF had won two thirds of the Parliamentary seats.

The net result was nil. The Concourt did not rush to reverse its judgment and the President did not gasp and refuse to serve. It is difficult to see what the Alliance thought it would achieve.

The latest boycott has seen legislators who have accepted a call by the Alliance to boycott all Parliamentary business. Partly this new boycott was a result of a Supreme Court ruling that the MDC-T had to restore its 2014 structures and hold a congress, which resulted in the MDC-T arguing that it was a component of the Alliance and had the right to recall those who had been nominated by that party for the Alliance list. And partly the boycott was to exert pressure on Speaker Advocate Jacob Mudenda to ignore those recall decisions.

The Speaker is not someone who yields to pressure; he showed that in 2017 when he refused to accept pressure from then President Robert Mugabe to stop an impeachment process.

Secondly, Adv Mudenda did not make the decision to allow the recall by tossing a coin.

He must have thought long and hard and consulted Parliamentary legal advisors before deciding that the MDC-T did have the right to recall some, although not all, of the MDC-A legislators, to be precise those who had been nominated by that party on the Alliance list.

At the core of the legal dispute is exactly what is the MDC-A?

The Alliance argues that it is a political party that has absorbed its constituent parts, including that section of MDC-T that remained in the Alliance after another section, led by many of those who were in leadership positions in 2014, went into the elections independently of the Alliance.

MDC-T has argued that the MDC-A is simply an electoral pact of separate parties that still have a legal existence and that each of those parties can recall those legislators it nominated in the long discussions and complex deal-making that went on behind the scenes when the Alliance was formed.

Last week, the High Court backed that view, in the absence of any evidence that the MDC-A had established itself as a legal entity superseding or replacing the constituent parties.

The only evidence presented to the court was the MDC Alliance agreement.

Perhaps there will be an appeal, but the MDC-A must now recognise that the Speaker was not being unreasonable when he made his decision since the High Court, quite independently, has come to the same conclusion. So the boycott is even more useless.

The legal mess tearing the opposition apart has ramifications that go far beyond the ambitions of individual politicians.

It also means that all those voters who backed the MDC-A in the last elections, no longer have a voice in Parliament or national debate.

Parliament had become increasingly effective in the Second Republic, especially with the growing competence of the portfolio committees that group Zanu PF and opposition legislators, and with a fair share of the chairpersons allocated to the opposition.

New legislation tended to be seriously analysed and discussed, rather than just have a Government draft rammed through Parliament, and a lot of good ideas from the opposition were included in the final version. Executive decisions, and non decisions, have also come under serious scrutiny by these committees, again for national benefit.

And in any case all Governments benefit from opposition scrutiny. At the very least they think through their proposals and actions in the knowledge that some hawk-eyed opponents have the constitutional right to drive through the loopholes in Parliamentary debate.

How the opposition sorts out its own legal status is a matter for the opposition.

But in the absence of any agreements, there is the option of the MDC-A constituting itself as a formal legal entity superseding its components.

The status of legislators nominated by most Alliance parties will not be effected since the ban on changing parties does not apply when parties unite.

That would still leave a large batch nominated originally by the MDC-T, which might choose the option of recalling the lot.

The MDC-A then needs to fight the by-elections and let the voters decide if it is a real party that they still support.

Organising by-elections in the Covid-19 pandemic and resulting lockdown will be difficult, but not impossible, probably requiring dozens of polling stations to avoid crowds. But as almost all the affected constituencies are urban seats this is not as hard as all of that, since the Zimbabwe Electoral Commission could even have a dozen tents at each of the old polling stations and split voters into small groups by surname.

But boycotts to apply pressure are not the answer and are not the way to reverse decisions by the courts.

Legal challenges are a good way to find out the actual legal position, but when the result goes against you then you have to fix legal deficiencies and then use other constitutional processes to restore your position.

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