The Folly of Sacrificing the Soul to Save the Toe: A Human Rights Perspective on the 2020 Parliamentary Coup in Zimbabwe

Following the death of Tsvangirai in 2018, the founding leader of the Movement for Democratic Change (MDC-T), the biggest opposition political party in Zimbabwe, there were succession disputes in MDC-T which split the party into two factions, one led by Chamisa and another by Khupe. Both factions registered for the 2018 elections as separate political outfits. While Chamisa got over 2 million votes and 88 parliamentary seats, Khupe got 45 thousand votes and two parliamentary seats. In 2020, two years after the 2018 election, the Supreme Court ruled on the succession dispute in favour of Khupe as the legitimate leader of MDC-T. The Court emphasised the need for opposition parties to respect their own constitutions and internal democratic processes. Given that in 2018, both Chamisa and Khupe factions were presented to voters as viable political options against which citizens exercised their right to vote and freedom of association, did the Supreme Court, intentionally or unwittingly, choose to sacrifice the national constitution, the very soul of the nation, in order to save a toe – the internal processes of an opposition political party? Using the Supreme Court judgment as her weapon, Khupe, claiming to be the legitimate leader of everything and anything MDC – including all parliamentarians elected under Chamisa’s banner – went on an en masse recall of parliamentarians who, in fact, competed against her and her faction in the 2018 elections. On 8 October 2020, Khupe and her allies were sworn in as parliamentarians, replacing those she recalled. Khupe was also recognised as the Leader of the Opposition in Parliament, regardless of her dismal performance in the 2018 elections. Was this a parliamentary coup, a process that is prohibited under the doctrine of unconstitutional change of government in Africa? Were recalls by Khupe in line with the true purpose and spirit of recall provisions in the Constitution? Are such recalls in line with fundamental rights guaranteed in the Constitution, regional and international human rights treaties binding on Zimbabwe? What are the human rights guarantees relating to parliamentary recalls in other countries such as the United Kingdom?

An audio recording of this event is available to listen to on Soundcloud

Speakers

Dr Alex Magaisa, PhD (University of Warwick); LLB (University of Zimbabwe)

Alex is a United Kingdom based Zimbabwean academic and lecturer of law at the Kent Law School of the University of Kent. He served as the Advisor (Chief of Staff) of the then Prime Minister of Zimbabwe Morgan Tsvangirai from 2012-2013. Prior to becoming Advisor to the Prime Minister, Magaisa had been working as a core member of a team of experts tasked to advise on the drafting of the 2013 Constitution of Zimbabwe. He is known for his legal, political and social commentary work on issues affecting Zimbabwe and other developing nations through his blog The Big Saturday Read (BSR). The BSR also explores various matters relating to the implementation of the 2013 Zimbabwe Constitution which Alex played a critical role in its drafting.

Dr Thompson Chengeta, LL.D & LLM (Uni of Pretoria); LLM (Harvard); LLB (MSU)

Thompson is a European Research Council Fellow and Research Work Package Leader at the University of Southampton. He serves as legal expert for ICRAC and IPRAW, organisations working in the framework of the United Nations. He is the African Region Lead for the Campaign to Stop Killer Robots and Co-Chairs its Working Group on Intersectionality. The Campaign comprises of more than 165 Human Rights NGOs from all over the world. As a Senior Lecturer in Law, Thompson has lectured and presented seminars at various universities across the globe. He has published in international law and human rights in top peer-reviewed journals such as the Harvard International Law Journal, European Journal of International Law, Cambridge International and Comparative Law Quarterly, Brooklyn Journal of International Law and the New York University Journal of International Law and Policy. For the past 10 years, Thompson is the author of the hypothetical cases of the Nelson Mandela World Human Rights Moot Court Competition – the world’s largest human rights moot court competition – that is presented by the Centre for Human Rights in partnership with the United Nations Office of the High Commissioner for Human Rights, and the Academy on Human Rights and Humanitarian Law, Washington College of Law, United States.

Respondent

Adv Jason Brickhill, MSt (Oxon); LLB (UCT)

Jason is a Zimbabwean and South African legal academic and an advocate at the Johannesburg Bar. He is in the final stages of a DPhil at the University of Oxford on strategic litigation in South Africa. He has taught on several human rights law courses at Oxford. Before coming to Oxford, Jason served as Director of the Constitutional Litigation Unit at the Legal Resources Centre, South Africa. He has appeared in all of the courts of South Africa, including the Constitutional Court, and has argued matters before the Namibian courts. He has published widely on constitutional law, strategic litigation and human rights. His latest publication is J Brickhill Public Interest Litigation in South Africa (Juta 2018), a multi-author volume on the theory and practice of public interest litigation under the South African Constitution. He provided advice to the Law Society of Zimbabwe on the drafting of the 2013 Zimbabwe Constitution, and has written on human rights and constitutionalism in Zimbabwe.