PRESIDENT Emmerson Mnangagwa has been dragged to the Constitutional Court for behaviour that is inconsistent with provisions of the constitution after the appointment of Zanu PF politburo member Patrick Chinamsa as Air Zimbabwe director and board chairperson, while the parastatal is under judicial management.
Mnangagwa and his lawyer Edwin Manikai are being sued together by Tichaona Mupasiri. In his 16 December court application, Mupasiri is seeking an order to declare that Mnangagwa’s action constitutes conduct that is inconsistent with the constitution.
“The First Respondent’s appointment of Chinamasa as Director and Chairman of Air Zimbabwe, a company whose control and management was divested from its directors and shareholders and vested in an Administrator appointed by the Minister of Justice pursuant to the operation of the Reconstruction of State-Indebted Insolvent Act 2005, constitutes conduct that is inconsistent with the Constitution as follows: “By engaging in a self-help scheme, interposing himself as a shareholder of Air Zimbabwe, the First Respondent failed to fulfil his obligations in terms of s90 ( I ) and s90(2)(c) by clothing himself with right to amend the Reconstruction Act that specifically vests the control and direction of the company under the Administrator.”
“By knowingly and intentionally appointing Chinamasa to be a Chairman of Air Zimbabwe, a juristic entity in its own right, the First Respondent had no title to do and usurped the power and authority of shareholders of the company, to the extent that the then Companies Act could operate concurrently with the Reconstruction of State-indebted Insolvent Companies Act.”
Mupasiri said Mnangagwa knowingly and intentionally offended the fundamental rights and freedoms of shareholders and creditors involved in the affairs of the company by appointing a representative of the company who was not accountable to shareholders but to him.
“By failing to take cognisance of the fact that the right to appoint directors falls within the scope of the exercise of fundamental rights, the First Respondent’s conduct was inconsistent with the duties imposed upon him by s90(l) and s90(2)(c) of the Constitution rendering his conduct unconstitutional and invalid,” the draft order reads.
“By allowing and actively participating in the appointment of Chinamasa, whose effect was to create an absurdity of a company having two centres of control, the First Respondent acted ultra vires s6 of the Reconstruction of State Indebted Insolvent Companies Act and in so doing failed to uphold, defend, obey and respect the Constitution as set out in s90( I ) and to uphold the rule of law as per s(90)(2)(c) of the Constitution.”