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Mupasiri v President Mnangagwa CCZ 34/21 – The search for the truth

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On 17 December 2021, Mr. Tichaona Mupasiri launched a court application in terms of s167(2)(d) as read with s167(3) of the Constitution asking the Constitutional Court of Zimbabwe (CCZ) to determine if President Mnangagwa failed to fulfill his constitutional obligations by failing and/or refusing to respond with facts regarding his state of knowledge and the extent of his personal involvement in the use of the reconstruction law, a law that was specifically created to deal with Mutumwa Mawere, to divest and deprive shareholders and directors of the control and direction of their companies.

Court application in terms of S167(2)(d) as read with s167(3) of the Constitution of Zimbabwe.

In response to this application, President Mnangagwa states that the facts he deposed to are known to him and are true and correct yet in reality, he discloses nothing known to him although he admits possessing knowledge that should allow the CCZ to determine whether the decision to use the reconstruction act was motivated by any public interest or was triggered by a major political fallout that Manikai, who is the Second Respondent in the matter, said occurred as a matter of fact between Mawere and Mnangagwa.

In this article, we deal with whether the allegation made by President Mnangagwa that it is incompetent on account of the fact that it relates to his alleged conduct prior to the date he became President and as such cannot be scrutinized in terms of the provisions of the 2013 Constitution.

President Mnangagwa asserts that the application is not about his breach of the oath that compels him to tell the truth and nothing but the truth regarding the question of the day – Was he involved or not in the use of the reconstruction act as a weapon to punish and destroy?

MUPASIRI’S ANSWERING AFFIDAVIT TO THE QUESTION OF WHETHER PRESIDENT MNANGAGWA’S OPPOSITION IS VALID OR NOT AS PER PARAGRAPHS (a)(4 & 4.1):

FIRST RESPONDENT’S ANSWERING AFFIDAVIT

  1. I now turn to deal with the First Respondent’s answering affidavit. I do not intent to deal with every averment therein. However, any failure to reply to any specific averment should not be construed as an admission thereof.

Ad paragraph 2

  • The allegation that my application is an abuse of court process is denied. This Application is intended to test whether the First Respondent’s capricious, dismissive, contemptuous, arrogant and judgmental approach to a citizen like me who is searching for the truth regarding the serious and prejudicial remarks made against him by the Second Respondent, is consistent with the obligations imposed upon him by the Constitution.
  • It is significant that the First Respondent whose duty is to uphold the rule of law has already dismissed my application outside the four corners of the Court.
  • It is quite evident that the supremacy of the Constitution is not relevant to him,
  • The First Respondent is not above the law and instead of adopting the posture of being subject to the law by giving his statement of truth detailing his state of knowledge and involvement in the affairs of SMM and the use of public power to create the facts and circumstances of a state-assisted destruction of companies and jobs, he attacks.
  • It is my submission that the First Respondent enjoys no privilege to protect him from disclosing what he knows and his involvement in this matter that may help to explain his role in giving birth to a morality inherent in the Reconstruction Laws that is inimical to the rule of law and which enjoins the judiciary to refuse to acquiesce to any actions that aids and abets the tyranny underpinning any law that is based on any contracting party to benefit self-help and confirm this barbaric and animalist choices in a court of law.
  • The active attack on the rule of law should not be tolerated at all lest this creates a new precedent of an unaccountable system of governance.
  • I am shocked that the First Respondent would have the audacity to attack my application meant to insulate him from a cabal of criminals that include the Second Respondent whose despicable conduct undermines the justice delivery system.

Ad paragraph 3

  • It is denied that my application is bad in law and fact.

Ad paragraph (a)(4)

  1. It is admitted that my application is confined to the alleged breach of the duty by the First Respondent to fulfil his constitutional obligation to uphold the rule of law by intentionally and knowingly associating himself with scandalous characters like the Second Respondent who has used his name to commit serious and punishable crimes with impunity in the name of SMM reconstruction. It is denied that this application is not what is stated in it. The use of the term “ostensible” is unfortunate.

Ad paragraph 4.1

  1. It is denied that the application is incompetent on account of the fact that it allegedly relates to the First Respondent’s conduct before November 2017 or before he became President of Zimbabwe.
  2. The dispute is centred around his conduct in relation to the scandalous allegations of his involvement in giving life to the reality of his refusal and failure to be the guardian in the search of the truth, a central pillar of the rule of law, especially having regard of the causal link between the existence and operation of the Reconstruction Act and its prosecution under his watch. Had this law been offensive to his sense of morality, it would have suffered the same fate like the Indigenisation Law that was repealed without any judicial involvement.
  3. The First Respondent owes a duty to the Rule of Law and not to anything else. To the extent that he possesses knowledge that is essential for this Court to exercise its discretion on the question of his alleged breach of oath, one would expect him to assist this exercise done in the interests of justice to openly and transparently give his own account of his knowledge and involvement.
  4. Clearly, the First Respondent is not denying his involvement in the affairs of SMM as alleged by the Second Respondent.
  5. He is saying that his state of knowledge should be kept out of this justiciable dispute. I am not the one who has fingered him in this scandal but his trusted lawyer, an oath taking person, has already given a version that the First Respondent has no problem borrowing public power for ulterior and personal ends.
  6. It cannot be disputed that in the quest for the truth and accountability, this Court ought to be the final arbiter of what evidence is admissible or not yet in this case, the First Respondent believes otherwise.
  7. It is not clear on what legal authority he asserts that he should not be accountable for refusing or failing to assist the just and proper determination of my application with information that he does not deny he possesses.
  8. It is not my intention to hold the First Respondent accountable for conduct that preceded his assumption of the office of President but to benefit from his own version of what he knows and why he would find my application offensive if in truth and fact, his involvement in relation to the Reconstruction matters was always informed by a public interest.

READ THE ABOVE AND JUDGE FOR YOURSELF.

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