Assessing President Mnangagwa’s Views on Constitutional Validity and Legality

In this matter, Mr. Tichaona Mupasiri, in the matter under Case Number CCZ 34/21 issued on December 17, 2021, in terms of s. 167(2)(d) as read with s. 167(3) of the Constitution of Zimbabwe, which gives the Constitutional Court of Zimbabwe exclusive title and jurisdiction to hear, determine, and declare the constitutional validity and legality in relation to the allegations that he was the driving force and mind behind the corporate coup that led to the divestment of Mawere’s title, right, and interest in 26 companies including SMM Holdings Private Limited, SMM, a company that was incorporated in terms of the Companies Act of Zimbabwe, using a law that he gave birth to using Chinamasa, Manikai, Gwaradzimba, John Mushayavanhu, without the knowledge and involvement of the late President Mugabe who was politically castrated before November 2017:

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President Emmerson Mnangagwa’s statements regarding the test of constitutional validity and legality of laws or conduct have sparked significant debate and scrutiny among members of the JLI-AI-AFRICA initiative.

His assertions, made under oath, warrant a thorough examination to determine their alignment with constitutional and rule of law principles.

Let’s delve into President Mnangagwa’s statements and juxtapose them with the constitutional and rule of law standards paragraph by paragraph for clarity and understanding.

Paragraph 1: President Mnangagwa’s Statement under Oath: “The views held by Gwaradzimba on the constitutionality of the Reconstruction Act are informed by extant judgments of the apex court. Those views are shared by my government and can only be revised if a pronouncement to the contrary is issued by this court.”

Constitutional/Rule of Law Position: The President’s statement acknowledges the importance of judicial precedent and the role of the court in interpreting the constitutionality of laws. However, the constitutional position emphasizes that the Constitution itself is the supreme law, and any law or conduct inconsistent with it is invalid. The judiciary’s pronouncement is essential, but ultimate authority rests with the Constitution.

Paragraph 2: President Mnangagwa’s Statement under Oath: “The facts relating to SMM are known to me. There are contained in the court records. I am briefed on them. The fact that Mawere has lost his matters in court is also known to me. It is a matter of public record. Besides, I am fully briefed on it.”

Constitutional/Rule of Law Position: While the President’s awareness of court records and legal proceedings is commendable, the rule of law necessitates respect for due process and the independence of the judiciary. The outcome of court cases should not influence executive actions or views on constitutional validity unless a court ruling specifically addresses the constitutional aspects.

Paragraph 3: President Mnangagwa’s Statement under Oath: “The laws applied against Air Zimbabwe are valid, binding and extant. So too are all the steps taken pursuant to such laws. I welcome a challenge to these laws. Before that challenge comes and indeed before the laws are struck down as being unconstitutional, my government will apply them. Anything to the contrary is what would amount to a violation by me, of my constitutional obligations.”

Constitutional/Rule of Law Position: The President’s stance on the validity and applicability of laws is reasonable, but it must be tempered with a clear understanding that any law or action contrary to the Constitution is invalid. The constitutional duty requires adherence to the Constitution first and foremost, even if it means challenging existing laws through lawful means.

Paragraph 4: President Mnangagwa’s Statement under Oath: “It is not correct that a company established under the repealed Companies Act (Chapter 2403) could not be subjected to other laws apart from the law under which it was established.”

Constitutional/Rule of Law Position: The President’s clarification on legal jurisdiction over entities established under specific laws is valid. However, it must be ensured that such application of laws aligns with constitutional principles, including non-discrimination and fairness in legal treatment.

Paragraph 5: President Mnangagwa’s Statement under Oath: “I did not place Hwange under reconstruction. The minister involved in taking that decision exists and ought to have been joined to these proceedings. Given that I did not place Hwange under reconstruction, the question of a potential breach by me of my constitutional obligations cannot and does not arise out of Hwange’s placement under reconstruction.”

Constitutional/Rule of Law Position: The President’s assertion regarding his role in Hwange’s reconstruction is valid, emphasizing the importance of due process and proper legal procedures. However, the constitutional position requires accountability and oversight to ensure that executive actions, even if carried out by ministers, comply with constitutional norms and principles.

Paragraph 6: President Mnangagwa’s Statement under Oath: “Applicant seems to think that the ‘criticism’ directed at my minister by the court ought to have made me take certain unspecified action against my minister. It does not work like that. The duty of the court is to show elected officials the way. Once elected officials are shown the way, they are expected to behave in accordance with what the court would have said. That’s why there are three arms of government.”

Constitutional/Rule of Law Position: The President’s understanding of the separation of powers and the judiciary’s role in guiding elected officials is accurate. However, accountability mechanisms must be in place to address any violations or misconduct by officials, including ministers, in line with constitutional checks and balances.

Paragraph 7: President Mnangagwa’s Statement under Oath: “At any rate, I am aware that the judgment was appealed. That judgment may stand or it may be set aside on appeal. Even if the judgment is upheld, that does not mean that I should take any action against the minister. He committed no misconduct. My failure to take the unspecified action does not amount to a breach by me of my constitutional obligations.”

Constitutional/Rule of Law Position: The President’s awareness of the appeals process and the need for due process in legal proceedings is crucial. However, the constitutional position emphasizes that if a court judgment upholds constitutional violations or misconduct, corrective action may be necessary to uphold the rule of law and constitutional integrity.

In conclusion, while President Mnangagwa’s statements demonstrate an understanding of legal processes and constitutional roles, they must always be assessed against the overarching principles of the Constitution and the rule of law. Compliance with constitutional obligations, adherence to due process, and respect for judicial independence are paramount in upholding democratic governance and legal integrity.