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Brian Kazungu

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President Mnangagwa challenges Mupasiri’s locus standi

Peter Smith

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  1. Mupasiri launched an application in terms of s167(2)(d) seeking the Constitutional Court to determine whether President Mnangagwa has failed to fulfil a constitutional duty.
  2. He also asked this court to determine if the impugned conduct is constitutional in terms of s167(3).
  3. The application was issued and served just before Christmas or 17 December 2021.
  4. The President did not waste any time in responding. He filed his answering on 24 December 2021.
  5. In his response, raised the issue in limine challenging Mupasiri’s locus standi.
  6. The President averred that: “A proper consideration of the application shows that it champions the cause of SMM Holdings Limited.”
  7. Mr. Tendai Mazenge, a member of FOSMM, responded as follows: “It is self-evident that Mupasiri’s application is in terms of s167(2)(d) and s167(3) and the President alluded to this material fact on paragraph 4 wherein he stated as follows: “The application before the court has been brought, ostensibly in terms of section 167(2Xd) as read with section 167(3) of the Constitution of Zimbabwe, 2013,” yet surprisingly and disingenuously he concluded that this application was incompetent.
  8. “I have read Mupasiri’s application and I have not been able to find any instance in which the Applicant, Mr. Mupasiri remotely suggests that the application has anything to do with the affairs of SMM but he is simply seeking to hold the President accountable in an open and transparent process why he chose to ignore Mr. Mupasiri’s letter of 9 November 2021 in which he sought the President’s response to the damning allegations made by his lawyer that the reconstruction order in relation to SMM was targeted at destroying Mawere’s business empire following what Manikai described as a major fallout that compelled him to take side resulting in self-appointing himself to be the exclusive assassin in the SMM saga.
  9. This is what Gwaradzimba in a letter dated 19 May 2009 in response to the decision by the late President Mugabe transmitted through Dr. Gono, the former RBZ Governor, had to say in relation to the background of why it was deemed necessary to create a law to deal with Mawere: “An Act of Parliament had to be passed to deal with the special circumstances of SMM – The Reconstruction of State-Indebted Insolvent Companies Act (Chapter 24:27)[“the Act”]. This Act has been tested in the courts, and there are judgments passed in Zimbabwe based in the Act. Outside Zimbabwe, many cases have been brought before various courts to deal with the SMM special circumstances, and judgments have been passed.”
  10. The President proceeded to state as follows: “Mr Mutumwa Dziva Mawere has also deposed to an affidavit in support of the application.”
  11. Professor Mupasiri observed: “I really expected my President to rise above the corruption that has characterized the heist of SMM and the reality expressed by Manikai that he is proud to have played a heroic role in destroying perceived and real enemies who stood in the way for President Mnangagwa to rise to the throne. I would not have thought that a supporting affidavit in a court process would threaten a President of the people. All I expected him was to speak truth to power but I can see that my application has now been twisted to suit a narrative that anything to do with Mawere is not in the interests of justice and the courts must be made redundant.”
  12. Professor Mupasiri continued: “When I read these words from my President, it was chilling that such a response would come from an oath taking public office bearer:

“In paragraph 184 of the lengthy Founding Affidavit, the deponent says: The question of costs incurred in the present application should be decided by this Honourable Court because this is a last-ditch attempt to make the people who caused the demise of SMM accountable for their actions and conduct.”

  1. Mupasiri said further: “It was disturbing that my President could not distinguish a s167 challenge from any other litigation in which the ConCourt has no exclusive jurisdiction like my application when he stated as follows:

“The applicant has no locus standi to vindicate the cause of SMM. He neither identifies himself as a shareholder nor officer of SMM.”

In an attempt to conceal the purpose of the application, the deponent calls to aid the circumstances of Air Zimbabwe Holdings (Private) Limited and those of Hwange Colliery Company Limited.

He however, fails to establish his interests in those entities and does not show what cause of theirs he wishes to vindicate. I am advised that the locus standi requirements under the constitution are generous.

They are however, still well defined. The applicant has not brought himself within the permissible category or class of persons that may seek this kind of relief from a court of law. His standing is in issue.”

  1. Below is a thread of a chat in the University of FOSMM group, an initiative under the theme: Justice Under Law (JULOL) that may help in promoting awareness of why justice and its pursuit is important in building a Zimbabwe that works for all:  

[1/13, 9:49 AM] Tendai Mazenge: What do we do to people who have no respect for rule of law, people who do not respect the constitution and abuse human rights? These powerful people need to be brought to book. It’s our duty as citizens to hold them accountable regardless of the positions they hold in our society. It’s time we set a precedent and show the whole world that it can be done

[1/13, 9:50 AM] mdmawere1: Good morning. I shared with you the draft done by @⁨Prof Mupasiri⁩. What is your general comment?

[1/13, 9:52 AM] +263 78 590 4447: Good morning to you all. While the SMM saga is a litmus test for the Rule of Law in Zim. I just wonder with our captured judiciary and now the undermining of the Law Society, will we ever get our day in court

[1/13, 10:04 AM] mdmawere1: Worry more about what is outside the court than what the court (captured) can do inside the court.

[1/13, 10:06 AM] +263 78 590 4447: Outside the court there is a war to dismantle the Law Society and form a splinter society which we all know will reminis Chinotimba’s Zim Federation of Trade Unions Vs ZCTU.

It means people like Manikai will never get checked

[1/13, 10:07 AM] mdmawere1: Did you know Manikai before?

[1/13, 10:09 AM] +263 78 590 4447: I did Sir?

[1/13, 10:11 AM] mdmawere1: Can you share your knowledge of him?

[1/13, 10:28 AM] Tendai Mazenge: Its quite an excellent draft. I have noticed that Professor Mupasiri is the applicant on the draft however I feel for the application to carry more weight we must treat it as a class action and have many people under FOSMM as applicants than just one applicant. Then we need to identify people who are willing to take this matter far and we include them as applicants. I am not sure if this is possible or not, guide me accordingly

[1/13, 10:30 AM] mdmawere1: Do you think multiplying logic alters what is logical?

[1/13, 10:32 AM] Tendai Mazenge: Not really. Professor Mupasiri has done an excellent job on the draft on his own. I just wanted to know if it’s possible to treat it as a class action or not. That’s why I asked to be guided

[1/13, 10:35 AM] mdmawere1: Have you looked at s(2)(2) of the constitution?

[1/13, 10:35 AM] Tendai Mazenge: No. What does it say?

[1/13, 10:39 AM] mdmawere1: 2. Supremacy of Constitution

1. This Constitution is the supreme law of Zimbabwe and any law, practice, custom

or conduct inconsistent with it is invalid to the extent of the inconsistency.

2. The obligations imposed by this Constitution are binding on every person,

natural or juristic, including the State and all executive, legislative and judicial

institutions and agencies of government at every level, and must be fulfilled by

them.

[1/13, 10:44 AM] mdmawere1: Have you gotten it?

[1/13, 10:46 AM] Tendai Mazenge: Yes I did

[1/13, 10:46 AM] mdmawere1: What is your interpretation of it?

[1/13, 10:48 AM] Tendai Mazenge: The constitution is the Supreme law of the nation and no one is above it including the President and all institutions

[1/13, 10:49 AM] mdmawere1: And s(2)(2).

[1/13, 10:52 AM] Tendai Mazenge: What the constitution requires is binding on everyone who falls under it and that includes people,institutions and the President

[1/13, 10:52 AM] mdmawere1: Do you agree that citizenship is not free?

[1/13, 10:53 AM] Tendai Mazenge: How So?

[1/13, 10:56 AM] mdmawere1: What do you think are the obligations imposed on every citizen?

[1/13, 11:02 AM] Tendai Mazenge: Every citizen must respect the rule of law and respect the constitution which is the Supreme law of land. Anyone who goes against the constitution or abuse it will be held accountable. The citizens are the ones who agreed to this that’s why they go for a referendum to endorse the constitution. Whatever the constitution says whether its oppressive or not its binding. Unfortunately, the citizens do not read everything in that document. It’s too big and the law jargon confuses many people

[1/13, 11:04 AM] mdmawere1: Do you agree that every person is obliged to uphold, defend, respect and obey the constitution as the supreme law and also to ensure that the rule of law is protected?

[1/13, 11:05 AM] Tendai Mazenge: Yes I agree

[1/13, 11:06 AM] mdmawere1: Do you agree that it is the duty of every person to give life to the promise?

[1/13, 11:11 AM] Tendai Mazenge: Yes but many people would not give life to what they promise. They are good at promising but honoring their promise is a hard thing to do.

[1/13, 11:14 AM] mdmawere1: Do you agree that every person has a duty to the constitution?

[1/13, 11:20 AM] Tendai Mazenge: Yes I agree

[1/13, 11:22 AM] mdmawere1: Do you agree that @⁨Prof Mupasiri⁩ is adequate as a bridge to court and justice?

[1/13, 11:25 AM] Tendai Mazenge: I very much agree. He has every right as enshrined by our constitution

[1/13, 11:27 AM] mdmawere1: Have you read what the President said in his answering affidavit?

[1/13, 11:51 AM] Tendai Mazenge: The President is refusing to take the blame and he is using the court judgements that were against SMM without answering what Professor Mupasiri is asking him.

The President is responsible for the outcomes of his actions, not just his intentions. He must uphold, obey, respect and defend the constitution, as the supreme law of the nation and must ensure that the Constitution and all the other laws are faithfully observed, and ensure protection of the fundamental human rights and freedoms and the rule of law.

He doesnt seem to understand and respect the rule of law and the constitution.  Infact he doesnt care

[1/13, 12:15 PM] +263 78 590 4447: I think we need to take into account his arguments. That should be the basis of our action.

He will argue that the SMM case was dealt with at a court of Law hence it is FOSMM trying to subvert the constitution.

[1/13, 12:21 PM] Tendai Mazenge: Its our constitutional right to appeal what we percieve as flawed judgments. Instead, we are opening a new case against Mnangagwa, Manikai, Gwaradzimba and Chinamasa. They abused the law because they occupy positions of influence in our country. We just have to show them that no one is above the law

[1/13, 1:16 PM] Tendai Mazenge: In short, he is saying he is the law. How can the framers of the constitution be guilty of making mistakes yet it was voted for by the people of Zimbabwe? This is what we need to expose and make sure the next President will not be above the law.

[1/13, 1:19 PM] mdmawere1: Is he not trying to protect Manikai from assisting the Court in answering the question of why the law that is repugnant to those of PROJECT RESTORE is still alive and well after the demise of Mugabe who was surrounded by criminals?  What if the current President inherited the real army that has been attacking the constitutional order for years?

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Mupasiri’s s167 Challenge Unpacked

Peter Smith

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What are the s167(2)(d) and s167(3) challenges? The constitution under s167(2)(d) provides as follows:

167(2)(d) Subject to this Constitution, only the Constitutional Court may–
d. determine whether Parliament or the President has failed to fulfill a
constitutional obligation. In this case, Mupasiri is arguing that the President by failing to acknowledge his letter and refusing to condemn the enforcement under his tenure of a law that offends the doctrines of separation of powers and equality, has conducted himself in a manner that is ultra vires the constitution he took an oath to uphold, defend, obey and respect as the supreme law of the republic.

And s167 provides that the Constitutional Court makes the final decision whether the conduct of the President is constitutional. In this case, the Concourt is being asked to determine whether the President by failing to act against his Minister of Justice, Legal & Parliamentary Affairs, Hon. Ziyambi, who issued limiting reconstruction orders in relation to Hwange & Air Zimbabwe, failed to fulfill the constitutional duties per his oath that compel him to ensure that the rule of law is protected.

Mr. Mupasiri avers that the President compounded the problem is that President Mnangagwa who in his answering affidavit seems to be oblivious to his duties, appointed the former Minister of Justice, Legal and Parliamentary Affairs, Hon Chinamasa to be the Chairman of Air Zimbabwe at a time the company was under reconstruction.

This precedent has provoked a wider conversation on the legality and constitutionality of a law that divests and deprives of the rights of shareholders without the prior involvement and determination by a court of law, and if a creature born from a draconian law can continue to be governed concurrently under the Companies Act, a law of general application.

Mr. Mupasiri has also raised the poignant issue of whether the limitations imposed on a company by the application of the Reconstruction Act can permit shareholders or their representatives to exercise their rights and freedoms in relation to this creature of statute i.e. the Reconstruction Order has the effect of divesting shareholders and directors of the control and management of their company.

“There mere fact that President Mnangagwa contemptuously appointed Chinamasa to a non-existent board is evidence that he conducts himself as a superior human being who is not obligated to limit his jurisdiction in terms of the supreme law,” said Mupasiri.

It is now common cause that Mr. Tichaona Mupasiri, Director of Public Policy of FOSMM, and a member a driver and founder of the FOSMM’s powered Justice Under the Law Initiative, launched an application before the Constitutional Court seeking an order that President Mnangagwa failed to fulfill a constitutional duty by failing when attention was brought to his attention via a letter dated 9 November 2021 to act in relation to the allegations made by one of his closest advisors, Mr. Edwin Manikai, that he was the Godfather of the Reconstruction of State-Indebted Insolvent Companies Act.

Below is a thread of a conversation extracted from the FOSMM WhatsApp group, FOSMM Litigation, that was created by Mupasiri to raise awareness on the urgency and need to restore the rule of law in Zimbabwe using the courts to test whether the promise of an independent and impartial judiciary is alive and well after 42 years of independence.

[1/13, 1:05 AM] Shepherd Tembo: PDF if you can convert for me I can only read pdf thanks
[1/13, 7:41 AM] mdmawere1: Morning
[1/13, 7:41 AM] mdmawere1: Will do.
[1/13, 7:42 AM] mdmawere1: Thanks for your contribution to the debate.
[1/13, 7:46 AM] Shepherd Tembo: Still in Zim until the first quarter of the year, my contribution will /maybe limited due to that, but will always endeavor to do that, and more robustly when in SA
[1/13, 7:46 AM] Shepherd Tembo: Hope you are well
[1/13, 7:51 AM] mdmawere1: Great. Do you think we are making progress in developing a shared understanding on the application?
[1/13, 8:32 AM] Shepherd Tembo: Absolutely I think it’s helping in many ways more than one :

  1. It can never be underestimated or downplayed that there is now enlightenment in terms of what happened and how the law has been used /abused against zimbabwean people by Zimbabwean political elite to dispossess fellow hardworking people in Zimbabwe.
  2. Zimbabweans have to be enlightened become fully conscious of their fundamental rights and recourse in case such rights are violated
  3. It fosters and encourages active citizenry towards upholding and defending their rights and the constitution
  4. Most critically especially for business people , they should realize that unless this is nipped on the bud the budding Entrepreneurship is suffocated and under siege from opportunistic politicians and their minions (surrogates)

It’s tragic that some still are naive to think it’s a Mawere issue
[1/13, 8:37 AM] mdmawere1: Do you think it is mischief that informs this attitude or it reflects a general human view that victims author their own injuries?
[1/13, 8:45 AM] Shepherd Tembo: A very good question:

  1. For those abusing the law it’s deliberately using the law as a weapon to disenfranchise the people and taking advantage of people’s ignorance.
  2. To the surrogates and minions being used it’s benefiting from the system that they dare not challenge lest the system doesn’t reward them . They always benefit from residual income that comes with carrying out such unfair and wrong assignments when on mission, creating lucrative contracts and jobs for the boys
  3. There is also a class of young upcoming people who have not been exposed to any other competent highly developed system that looks at meritocracy and it’s benefits to them zimbabwe presents an opportunity where you have to side with the Manikais celebrate them and you quickly rise and benefit from this abuse of the law
  4. For many others the general populace the unsophisticated no one has bothered and or dared to take their take to deliberately Inform them about the law basic law , the constitution , the duties and expectations of the office bearers and the politicians will capitalise on that

So it’s a mixture
[1/13, 8:48 AM] mdmawere1: Let me share the draft in PDF form so that you can help shape and define its character highlighting the issues of concern inherent in this matter.

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Can the ConCourt Impeach President Mnangagwa?

Peter Smith

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Mr. Mupasiri, Director of the Justice Under Rule of Law (JUROL), an initiative that is promoted by Friends of SMM (FOSMM), to raise awareness on the importance of holding public officials to account for the exercise of borrowed public power, this morning at 8:16 am provoked a conversation in the FOSMM Litigation WhatsApp group in which a thread of chats followed on the legal, ethical and constitutional implications arising from his application that is pending before the Constitutional Court.

“I have been overwhelmed by the mixed responses from the public about the true nature of my application and what it is intended to achieve. It is obvious that since independence no citizen has dared to hold the first citizen to account for his conduct in relation to the duties clearly spelled out in the constitution.

Although it is generally accepted that no one is above the law, ignorance on whether the President is subject to the law or he is above it is pervasive.

What prompted me to seek the court’s intervention was the arguments that ensued following a heated conversation in the FOSMM WhatsApp group on the serious and material admissions made by the prominent lawyer, Mr. Manikai of DMH Attorneys, on 27 March 2021 to Mr. Fred Mutanda, in relation to his query regarding the legal and factual basis in which the firm, DMH, could possibly be involved in Mr. Mawere’s personal house located in Mount Pleasant.

President Mnangagwa’s Key Man

It is true and fact that SMM (under Gwaradzimba’s control who was appointed by Chinamasa) has no legal relationship with the house yet the reality is that notwithstanding Gwaradzimba’s denial, SMM has had an exclusive relationship with the house since his appointment on 6 September 2004.

The Reconstruction Act prohibits a company under reconstruction from entering into any leases or management of properties during the reconstruction period and as such, it is not clear to me under what circumstances, SMM could collect rent and manage a private person’s property without his consent for 17 years.

When I discovered that the dispute in the WhatsApp groups could not be resolved by the participants, this led me to take the step forward to invoke s167(2)(d) of the Constitution that provides a window for any citizen to the CC for the Court to determine whether the President has failed to discharge his constitutional obligations by his own commission or omission during his tenure of office.

One of the President’s duties as set out in s90 of the Constitution is to ensure that the rule of law is protected.

It occurred to me that since his assumption of office, President Mnangagwa has failed, refused, and neglected to distance himself from the cabal that surrounded him who masterminded the demise of SMM under our watch.

It is significant that Manikai in his own words admitted that there was a political fallout between Mawere and President Mnangagwa that led Manikai to take sides with Mnangagwa in the fight against Mawere which has led to massive job losses and destruction of incomes.

I had no idea that President Mnangagwa would not see through my application that was not targeted at him but the people who use his name to undermine the rule of law.

This litigation was avoidable if both Manikai and President Mnangagwa had chosen to respond to my letters asking them to confirm the allegations that Manikai openly made that if you cross President Mnangagwa, then you may suffer the SMM fate.

Like many, I had assumed that SMM was indebted to the state as alleged by Chinamasa in his fraudulent affidavit in support of a confirmation of his Ministerial order that divested SMM’s UK-registered parent of the control and management of SMM Holdings (Private) Limited (SMM) without any judicial and parliamentary oversight.

Manikai and his firm, DMH, are private citizens yet in this case they almost got away with this scandal.”

President’s Law Firm

It was interesting to follow the chat in the Litigation WhatsApp group this morning. I was so inspired, to learn that actually, the Mupasiri challenge is not a challenge on the validity of the Reconstruction Act, a law that was specifically created to deal with SMM and related companies.

It is not surprising that the involvement of the Attorney General is eloquent in its missing suggesting that the constitutional duty of the office of the AG was outsourced to this private law firm.

Having followed closely the Musengezi challenge of President Mnangagwa’s ascendancy to the pole position as President of ZANU-PF, I was astonished to learn that the President’s legal representative is DMH and not the AG.

The conversation below will help in improving literacy on the high stakes involved in this interesting constitutional challenge.

[05/01, 08:10] Prof. Mupasiri Zimbabwe: Good morning.
[05/01, 08:14] Mutumwa Dziva Mawere: Morning
[05/01, 08:16] Prof. Mupasiri Zimbabwe: It is interesting to note that the application has become complex for a standard lawyer.
[05/01, 08:17] Prof. Mupasiri Zimbabwe: That makes everyone to be under internship
[05/01, 08:18] Mutumwa Dziva Mawere: He is raising a valid point. What are the duties that were infringed and how?
[05/01, 08:23] Prof. Mupasiri Zimbabwe: When the recon act divests control of directors and vests it in the hands of an administrator, it becomes a failure by the president it he appoints a board or director on a company under reconstruction, hence his conduct that very moment became inconsistent with his supposed duty to uphold the constitition.
[05/01, 08:24] Mutumwa Dziva Mawere: So you are attacking the Act?
[05/01, 08:32] Prof. Mupasiri Zimbabwe: It I not the act but the conduct which is under attack
[05/01, 08:32] Prof. Mupasiri Zimbabwe: It is his conduct in appointing which is in question…
[05/01, 08:32] Mutumwa Dziva Mawere: Can conduct be inconsistent with the supreme law.
[05/01, 08:34] Prof. Mupasiri Zimbabwe: Yes it’s given in S2(1) of the constitution.

When an office bearer does that which he knows is wrong, such conduct becomes inconsistent with the supreme law
[05/01, 08:35] Mutumwa Dziva Mawere: What does your conduct mean?
The noun conduct refers to behavior, like how students are rewarded for good conduct. … Your conduct (accent on the first syllable), or your own behavior, is the way you conduct (accent on the second syllable), or lead, yourself.
[05/01, 08:36] Mutumwa Dziva Mawere: What is the other meaning of conduct?
Some common synonyms of conduct are control, direct, and manage. While all these words mean “to use one’s powers to lead, guide, or dominate,” conduct implies taking responsibility for the acts and achievements of a group.
[05/01, 08:38] Prof. Mupasiri Zimbabwe: The manner in which a person behaves. It could mean the manner in which an organisation is run or directed
[05/01, 08:45] Mutumwa Dziva Mawere: What should be the test in relation to the President?
[05/01, 08:50] Prof. Mupasiri Zimbabwe: He conducted himself in a manner that offends both the constitution and the recon act which was under effect at Air Zim.
[05/01, 08:50] Mutumwa Dziva Mawere: In what way?
[05/01, 08:59] Prof. Mupasiri Zimbabwe: Making the recon act and the companies act to used concurrently.
[05/01, 09:00] Prof. Mupasiri Zimbabwe: They should not work together. The rise of another must result in the fall of the other
[05/01, 09:02] Mutumwa Dziva Mawere: We are still referring to the Acts?
[05/01, 09:04] Prof. Mupasiri Zimbabwe: Acts come after the Constitution as they are deemed to be consistent with it. It is the conduct which in question and not the act(s)
[05/01, 09:05] Mutumwa Dziva Mawere: If you were President, what would have been your conduct?
[05/01, 09:15] Prof. Mupasiri Zimbabwe: I would have dissociated myself with individuals and acts which places my oath of office into question.

I would have effected the recommendations of the GG report, set up a commission to look into the bypassing of AG’s office by Manikai, made efforts to recover the 2million USD in public funds that was lost in a UK litigation, would have made efforts towards the reimbursement of TAP Building Products money which was criminally obtained by Manikai and Gwaradzimba in a bid to sanitize the name of Zimbabwe and would have also made ZACC investigate the issue of private property which was fraudulently leased without the involvement of the owner.

Would have also caused the parliament to repeal the recon act.

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