Tsvangirai is right in taking Mugabe to court

OPINION – I beg to differ with analysts who are claiming that MDC President Morgan Tsvangirai could have shot himself in the foot by taking Zanu-pf leader Robert Mugabe to court over the unilateral appointment of 10 provincial governors by Mugabe. Enough is enough.

What else do they want Tsvangirai to have done when the so-called guarantors of the GPA, i.e. the SADC and the AU have been cowed into submission? Only last week, two SADC heads of state flunked the Gaberone summit which was meant to find a road map to free and fair elections in Zimbabwe amidst speculation that Mugabe’s securocrats may have put pressure on the Zambian and Mozambican leaders.

On the other hand, all the facilitator has done to date is to put pressure on Tsvangirai to “park the outstanding issues and move on”. That is not fair. Pressure should be on Mugabe who is acting in bad faith as far as the GPA is concerned, therefore Tsvangirai is left with no option than go to court. In any case, that’s the role of the courts to interpret the constitutionality or otherwise of Mugabe’s intransigence.

Contrary to what Lovemore Madhuku said that, “a breach of the GPA is a political problem which requires a political solution”, experience has shown that in practice i.e. in this coalition government, a political solution is not always the best solution, albeit an ideal theoretically. Tsvangirai is well advised by taking the matter to court because that way the arguments get into the public domain and leave everyone to make their own judgements, unlike at the present moment whereby the public relies on leaked partisan accounts of the goings-on in the GNU.

After all, constitutional disputes cannot be dealt with in political negotiations with people like Robert Mugabe and expect a genuine breakthrough. Far from it. There has been sufficient evidence of bad faith on the part of the Zanu-pf stalwart right from the beginning. As a matter of principle, Tsvangirai has done the right thing in taking Mugabe to court in what could be described as a “pre-emptive strike” – that is, just before Mugabe dissolves Parliament as a punishment to MDC MPs who are protesting the presence of the “illegal” Zanu-pf governors in the Senate.

Whatever the outcome of the court case, the message will have gone home, for the record that for the first time in Zimbabwe’s political history Robert Mugabe of Zanu-pf has been taken to court by Morgan Tsvangirai of MDC on a constitutional matter for legal opinion having exhausted all other political channels at home and abroad. Furthermore, analysts who are suggesting otherwise could be criticised for prejudicing the case by pronouncing a judgement before trial. Any criticism of Tsvangirai’s bold move will simply play into Mugabe’s hands as was the case with Lord Renton’s offer of asylum to Mugabe.

It is unconstitutional for Mugabe to dictate on who does what, where, when, how and why as if he is a majority leader in Parliament. Tsvangirai is helping to shape the course of Zimbabwean politics and history against heavy odds and most of the other politicians are cowards. He may not be perfect, but who is?

According to E.C.S. Wade and G. Godfrey Phillips in Constitutional and Administrative Law, Ninth Edition, it is more convenient to define constitutional law as meaning those laws which regulate the structure of the principal organs of government and their relationship to each other and to the citizen, and determine their main functions.

“Where there is a written constitution, emphasis is naturally placed on the rules which it contains and on the way in which they have been interpreted and applied by the highest court with constitutional jurisdiction,” p.5

It is therefore imperative to let the judges interpret the law. Although some members of Zimbabwe’s judiciary have given cause for concern, others have interpreted the law, whether constitutional or criminal, without fear or favour for example the acquittals of Morgan Tsvangiari, Jestina Mukoko and that of Roy Bennett. Lately, the order by the High Court for the release on bail of Standard Journalist, Ngobani Ndlovu who was being incarcerated at Khami notorious prison for defaming the Zimbabwe Republic Police are testimony of the existence of professional judges in Zimbabwe in spite of Mugabe.

Sadly, some ‘braai stick’ political parties have ganged –up against Tsvangirai for standing up to Mugabe’s call for elections in the face of Zanu-pf violence as if it’s him (Tsvangirai) who asked for the elections in the first place. Why can’t these braai sticks demand an explanation for Zanu-pf’s Copac Chairman Munyaradzi Paul Mangwana’s confession that his party engaged in a guerrilla-type campaign to force people into supporting Zanu-pf during the constitution outreach programme (Newsday, 25/11/10)?

In Shona we say, “Mwana asinga cheme anofira mumbereko” (A baby that does not cry risks dying of neglect). Tsvangirai should not be allowed to suffocate politically because of Mugabe’s intransigence. The last thing Tsvangirai needs at the moment is to be demoralised by philosophical pontifications.

Clifford Chitupa Mashiri, Political Analyst, London zimanalysis2009@gmail.com