Mnangagwa court case: Let there be fair hearing

THE High Court Case in which President Emmerson Mnangagwa’s legitimacy and legality is being challenged has predictably provoked public interest, not least among lawyers who see this as a test of credibility for the judges.

Not only would it be a credibility test for judges, for also for the judiciary as a whole. Integrity, independence and impartiality are key prerequisites for an effective and functional judiciary and judicial system for the peaceful resolution of legal disputes. The judiciary is one of the pillars of the state, together with the executive and legislature.

The media, fourth estate, belongs to that realm as well. An independent and effective justice system that safeguards human rights, facilitates access for all and provides transparent and objective recourse is a core value of democracy.

 A strong, stable and fair justice mechanism helps to ensure democratic, economic and social stability as disputes — like the one on Mnangagwa’s legitimacy — can be resolved within a structured and orderly framework.

These principles apply not only to members of the judiciary, but other actors in the justice system, including prosecutors and judicial administrators. That is why the spotlight will be on them when the hearing into the matter begins.

Zanu PF member Sybeth Musengezi, also a local businessman and economist, says he has a strong case against the ruling party which parachuted Mnangagwa to its helm unconstitutionally and unlawfully, making him a creature of illegalities.

His case is against Zanu PF, not Mnangagwa per se. Mnangagwa is cited as the outcome would have a material impact on his position, whether positive or negative for him. In his answering affidavit, in High Court Case Number HC 5687/21, Musengezi comes out guns blazing against Zanu PF (first respondent), Mnangagwa (second), Obert Mpofu (third) and Patrick Chinamasa (fourth).

The fifth respondent is former vice-president Phelekezela Mphoko and the sixth is ex-Zanu PF secretary for admin istration Ignatius Chombo. Zanu PF and Mnangagwa are represented by Edwin Manikai of Dube, Manikai and Hwacha, while Musengezi’s counsel is Bulawayo-based Ncube Attorneys, whose correspondent law firm in Harare is Mbidzo, Muchadehama and Makoni.

In a devastating answering affidavit, Musengezi seeks to crush all the issues raised by Manikai for Zanu PF and Mnangagwa, as well as others. He says to begin with the opposing affidavit filed by Manikai for Zanu PF and its officials, particularly Mpofu, was done without an exhibit of the ruling party’s resolution or permission for them to do so as the party is supposed to be represented in litigation by its secretary for legal affairs — Paul Mangwana — in terms of article 9, section 55(3) of its constitution.

 As a result, he says Zanu PF has not properly filed its notice of opposition and opposing affidavit, meaning it is legally out of court. In other words, they refrained from opposing his case against themselves and are content with merely backing Mpofu in court.

Musengezi, put differently, says the party against whom substantive relief is sought — Zanu PF — has not opposed the application even though Mpofu purports to be representing it without an exhibit to that effect.

He thus demands Mpofu’s pleadings of the law should be expunged from the official court record. Musengezi also says he has sued Mnangagwa in his official capacity as the president and first secretary of Zanu PF, not as state President.

“Applicant is alive to the distinction between the office of the President of the Republic of Zimbabwe and the President of the Zimbabwe African National Union Patriotic Front (Zanu PF),” Musengezi states.

“To suggest that the applicant is thereby suing the office of the President of the Republic of Zimbabwe is self-servingly misleading.”

He adds: “The constitutional provision relating to presidential immunity is not applicable in the present case. “No relief is being sought against the President of the Republic of Zimbabwe, either in his official or personal capacity in this application.

Accordingly, applicant stands by its afore averred averments.” Musengezi goes further: “To drag the office of the President of the Republic of Zimbabwe into this suit is to obfuscate issues upon which my application is rooted. I restate for the umpteenth time, that no relief is being sought by myself against the President of the Republic of Zimbabwe in his official or personal capacity. Relief is sought against the 1st respondent, a political association known as the Zimbabwe African National Union Patriotic Front, itself a legal entity founded upon its Constitution. Such institution is capable of suing and being sued in its own standing”.

Addressing Mpofu’s claim, Musengezi says he is a Zanu PF card-carrying member, whose POSB statement is linked to the party’s bank account, through which he pays subscriptions for his membership for 20 years now.

He attached documents to support that. Musengezi adds that he contested Zanu PF’s 2018 primary elections after being vetted by the Central Intelligence Organisation.

He says he is defending the party’s constitution and its political and ideological values therein. He states that he has a legitimate, direct and substantial interest in this case.

“I am directly affected by patently illegal decisions that its officials have foisted on it,” he points out. Musengezi argues that having demonstrated his Zanu PF membership and locus standi, he wants to uphold the party constitution and hold those in power accountable. Zanu PF leaders must uphold their own constitution before they are expected to respect the national constitution, he adds.

 On the issue of exhausting internal remedies first, Musengezi contends it is irrational for anyone to expect him to get justice from the same party structures he is accusing of acting illegally and causing injustice in the first place, and who are also “tainted with illegalities”.

“Such would amount to judgment of a complaint by the suspect,” he says. The illegalities Musengezi complains about arise from the Zanu PF central committee meeting of 19 November 2017 which he says was unconstitutionally convened, constituted and conducted as the late former president Robert Mugabe and Mphoko — the only two officials who could have legally called for it — were not there.

“I am advised that illegalities even by operation of prescription do not then become legalities,” he adds. Musengezi contends Mnangagwa’s party leadership was “founded on illegality” and “therefore the status quo should be interrupted”.

He adds that he has crystallised a clear and solid case against Zanu PF and by extension Mnangagwa, hence his relief sought cannot be incompetent as claimed by Mpofu and others. “The submission of illegality, and therefore of a nullity is well grounded,” he says.

 Musengezi adds: “It is alarming to hear that illegalities from start can be rectified or validated later. I submit that, that which is founded on an illegality cannot stand, and further cannot be validated by subsequent events. A nullity, I am advised, is a nullity for all time . . . It started with illegality and ended with it. It was, and still is a nullity . . . All the subsequent built up, was built on a nullity. “Over the years since independence, it is the 1st respondent (Zanu PF) that has provided personnel to govern this country, and it is accordingly, important that a party that governs, itself observes, its own constitution before it is expected to respect the broader national constitution. That is how important this matter is.”