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Deadly power struggle explodes Mnangagwa, Chiwenga clash over Malaba tenure extension

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THE simmering power struggle between President Emmerson Mnangagwa and his deputy Constantino Chiwenga has exploded in the courts as the former and his allies in the Judicial Service Commission (JSC) are running scared that the retired army general and his foot soldiers could sink his power consolidation and 2023 election project, sources say.

OWEN GAGARE
The plan is designed and calculated to propel Mnangagwa’s re-election bid in 2023. Besides, Zanu PF also has an elective congress next year before the elections.

Sources say Chiwenga’s ally in the judiciary, High Court Judge President George Chiweshe, and his associates could collapse Mnangagwa’s personalised power consolidation project. 

Chiweshe, sources say, has two major motivations to block Mnangagwa’s plot: He is anti-Malaba and is Chiwenga’s ally.

The constitutional amendments, especially No.2, affect Chiwenga as they remove the running mate clause, which leaves him a weak and vulnerable Mnangagwa appointee, even if he literally installed him in power through the 2017 military coup.

The sources say Mnangagwa’s allies fear Chiweshe and other judges, especially those on the panel appointed to hear the application of the Zimbabwe Human Rights NGO Forum executive director Musa Kika – consolidated with that of the Zimbabwe Young Lawyers Association – against the extension of superior court judges’ tenures, could block Chief Justice Luke Malaba’s controversial term extension. 

Chiweshe is a war veteran and retired major-general. He was Chiwenga’s deputy in Zanla’s political commissariat during the liberation struggle. 

After Independence, he worked as a public prosecutor before completing law studies at the University of Zimbabwe. 

In 1983, he joined the Zimbabwe National Army as a major and served in the directorate of legal services. He then rose through the ranks and became the head, and later judge advocate-general. He also became brigadier-general until his retirement in April 2001. 

After that, he was appointed High Court in 2001. He later became chair of the Delimitation Commission in 2004 and Zimbabwe Electoral Commission chair in 2005. 

As elections boss, he worked closely with Chiwenga and the military when they rescued Mugabe in 2008 after his defeat by founding opposition MDC leader Morgan Tsvangirai in the presidential election first round.

The army rescued Mugabe in the run-off, which forced Tsvangirai to pull out citing violence, intimidation and killings.

Chiweshe was appointed High Court Judge President in May 2010, succeeding Justice Rita Makarau. He has occasionally acted as a judge of the Supreme Court. 

As a result, Chiweshe’s alliance with Chiwenga is formidable. That is why the JSC does not want him involved in this matter.

The consolidated application also deals with Mnangagwa’s contentious constitutional amendments, which are the subject of looming volatile court battles.

The extension of Malaba’s tenure came against a backdrop of two unprecedented constitutional amendments and the overriding of the entrenched section 328 of the constitution without going to a referendum.

Malaba’s term was extended by five years on Tuesday. In terms of the constitution before the amendments, Malaba was supposed to retire by operation of law tomorrow at midnight when he turns 70. 

The extension of his tenure by five years has triggered the High Court battle, fuelling a deadly power struggle and cutthroat manoeuvres between Mnangagwa and Chiwenga ahead of congress and elections.

Three High Court judges – Justices Happias Zhou, Edith Mushore and Jester Helena Charewa – were till late last night locked in a court battle with the ministry of Justice, the JSC and the Attorney-General over the consolidated application which has thrown the cat among the pigeons. 

The JSC, fighting in Mnangagwa and Malaba’s corner, argued Chiweshe’s panel must be disbanded. It queried why Chiweshe was not cited in Kika’s application when he has sometimes served as Supreme Court judge, saying this was suspicious.

It also charged that Zhou was conflicted as he wants to be a Constitutional Court (ConCourt) judge. The judges dismissed the issue against Zhou and said they will deal with the other preliminary issues together with merits, allowing the arguments to proceed.

By demanding that the panel be disbanded and a new one be appointed by the most senior judge after Chiweshe – which means Justice Joseph Musakwa – the JSC was also objecting to the presence of Mushore and Charewa, showing it also does not trust the two ladies.

Kika has taken 17 judges (initially 16 before Lavender Makoni was added) to court over Mnangagwa’s bid to extend their tenures through amendments which they say are unconstitutional and illegal. 
Malaba has already benefitted. 

Kika’s application was consolidated with that of the Young Lawyers Association of Zimbabwe and businessman Frederick Charles Moses Mutanda which deals with the same issues, including the Malaba case and Constitution of Zimbabwe Amendment (No.2), the actual source of the problem.

Apart from giving Mnangagwa power to extend the tenure of judges, Amendment No.2 overrides section 328 of the constitution which says incumbents cannot benefit from changes of the law on tenure.

Lawyers say overriding section 328 without referring it to a referendum is unconstitutional. No referendum was held.

As a result of a string of illegalities, various court applications are being filed in the ConCourt to challenge the amendments, which have sparked widespread outrage and protest among stakeholders. 

These cases risk creating a constitutional imbroglio – a messy entanglement of the executive, legislature and judiciary – hence crisis.

The series of court applications are threatening Mnangagwa’s re-election project, which includes consolidating power, control and influence across the executive, judiciary, legislature, security sector and the media ahead of the elections. 

As a result, Mnangagwa has been pushing vigorously and spiritedly to make changes that give him more power and sideline Chiwenga.

Mnangagwa and Chiwenga are locked in a war of attrition which began soon after the 2017 military coup that toppled the long-time ruler Robert Mugabe. Chiwenga was Zimbabwe Defence Forces commander during the coup and basically installed Mnangagwa in power.

However, the two fell out soon afterwards over a number of unresolved leadership and power-related issues. 

Insiders say Mnangagwa had agreed to serve one term – until 2023 – and thereafter allow Chiwenga to take over.

He has, however, reneged on the agreement, triggering clashes and political brinkmanship between the two erstwhile allies.

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