In a letter dated January 24 2011, written to Ncube by lawyers Mbidzo, Muchadehama and Makoni and copied to the inclusive government principals, the group also argued Ncube could not make appointments before the High Court delivers a judgment in a case in which they are challenging the legality of the congress which ushered him into power.
On Sunday, Ncube announced the demotion of former party leader Arthur Mutambara from Deputy Prime Minister to the less glamorous portfolio of the Ministry of Regional Integration and International Co-operation.
Ncube, who is the Minister of Industry and Commerce, said he would take the DPM’s post while Priscilla Misihairabwi-Mushonga would replace him.
“Our clients advise that in redeploying the Deputy Prime Minister, you were acting under the authority conferred upon you by the illegitimate congress, which is subject matter of the pending High Court case,” wrote the lawyers.
“We are instructed to demand, as we hereby do, that you cease or restrain yourself forthwith from making and communicating any decisions concerning the position, structure or any affair in respect of the MDC party in your capacity as ‘MDC President’ pending the determination of the court regarding the legitimacy of the third MDC congress.”
They said the redeployment of Mutambara had no “force and effect” and also advised Ncube to reverse the recalling of rapporteurs, team leaders and thematic team members from Copac.
“We advise that by virtue of this letter, our clients are also informing the three principals to the GPA, His Excellency President Robert Mugabe, the Right Honourable Prime Minister Morgan Tsvangirai and Deputy Prime Minister Professor Arthur Mutambara that they do not recognise you as the MDC President and principal to the GPA,” read the letter.
“We further advise that the three principals are being informed that your newly acquired status is illegal.”
In case number 612/11 filed at the High Court last week, Mudzumwe, Constantine Chipadza, Morgan Changamire, Godfrey Gumbo, Tsitsi Dangarembgwa, Rosemary White, Mika Chikilivau, Charles Manyozo, Shepherd Adam, Peter Kafumu, Suman Tabu, Tapiwa Rukobo and Sami Chikapa are challenging the legality of the MDC congress.
They want the congress and outcomes from the gathering to be declared null and void.
They want Ncube, who is cited as the second respondent, to call for a congress in terms of the MDC constitution within six months of the declaratory. MDC is the first respondent.
They also want the respondents to pay costs of the application on a legal practitioner-client scale.
Mudzumwe argues the congress should be declared null and void “for failing to comply with mandatory provisions of the MDC Constitution” both prior to and during the congress.
“The second respondent failed to execute his duties in terms of Article 5.2.4 of the constitution which states that; ‘A notice convening the congress shall be sent to all provinces and districts by the secretary general with the approval of the national council at least one month before the date of the congress’,” said Mudzumwe.
“I submit that despite the above mandatory provision, not every district received the required notice. The district of Chitungwiza North constituency (and) Chegutu, among others, as examples, only got to know about the congress in print media and never received any notice from the second respondent.”
He also said other districts received the notice after December 9, which fell short of the required one-month notice, while also alleging that the congress was held without receiving nominations from all provinces, citing Masvingo as an example.
”I further submit that the national council only met on the 7th of January 2011, a day before the congress. This again made it impossible for the second respondent to comply with the ‘not less than four days’ notice requirement in terms of Article 6.13.3 (c),” he said.
Mudzumwe said some provinces such as Chitungwiza and Mashonaland West did not make nominations while the congress was attended by delegates who were not in the party structures.
He said as national chairman, he was supposed to conduct the elections as per the party constitution adding that he could only be replaced as the chairperson through a national council resolution, which was however not passed.
However, MDC spokesperson Nhlanhla Dube said Mudzumwe and his associates filed the application in an act of desperation after being rejected by the people. He labelled them “tribalists” who were trying to divide the party on regional lines but insisted they would fail.
“The attempt to soil the name of President Ncube will not succeed as it is public knowledge that the president’s understanding of the law is legendary both in practice and teaching. We are confident that this case will be dismissed with the contempt it deserves,” he said. – NewsDay