Friends of Shabanie and Mashava Mines Trust (FOSMM), is organized as a discretionary trust and operates in terms of the laws of Zimbabwe.
It was established to act as a vehicle for connecting, equipping and inspiring members and
raising awareness about the importance of the rule of law in shaping and defining the
character of a value-centric society.
SMM Holdings Private Limited (SMM) was created as a private company in 1917. In March
1996, the company’s sole parent, SMM Holdings Limited (SMMH), a company duly
incorporate in terms of the laws of the United Kingdom (UK), that was in turn owned by T &
N Plc, a company registered and operating in terms of the laws of the UK, was acquired by
Africa Resources Limited (ARL).
ARL, a BVI registered company was wholly owned by Mr. Mutumwa Mawere, a
Zimbabwean-born South African resident and citizen since 2002
CESSION COURT ORDER
In December 2003, Dr. Gideon Gono was appointed as the Governor of the Reserve Bank of
Zimbabwe (RBZ).Following his appointment, he proceeded to target SMM and its related companies
comprising 26 juristic entities employing more than 20,000 employees.
The initial cause of attack was foreign exchange related. Under Gono’s instruction, the
regime of forex retention whereby 75% of foreign exchange earned by SMM could be
retained for its own use was changed and reduced to an effective 25%.
This in simple terms meant that if SMM received $1 million from export sales, it was
required to sell $750K to the market at the official exchange rate and could only use $250K
to meet its important requirements.
The difference between the official and black-market rates was wide and significant allowing
for people in the RBZ selling the exported forex to special friends who would then sell this
scarce commodity through the black market and pocketing the windfall profits.
Between January and March 30, 2004, SMM was marketing its own asbestos products. With
effect from 1 April 2004, SMM’s exemption to market asbestos was terminated abruptly and
the Minerals Marketing Corporation of Zimbabwe Limited (MMCZ).
One of SAS’ agents, Southern Asbestos Sales Pty Limited (SAS), a company incorporated and
operating in terms of the SA laws, was responsible for invoicing SMM’s customers and
collecting funds from the sales that were then remitted to SMM in Zimbabwe.
As a direct consequence of the RBZ’s targeting, SMM was unable to use its forex to pay its
foreign creditors of which Petter Trading Pty Limited (Petter), a company incorporated and
operating in terms of the laws of SA, was the largest.
Petter approached the SA courts to obtain an order to allow it to collect from SAS what was
due to it but could no longer be paid by SMM.
The order was granted on 6 May 2004 per Van Oosten J.
EXRADITION OF MAWERE
On 17 May, 2004, a warrant of arrest was issued against Mr. Mawere, who was neither a
resident of Zimbabwe nor a director of SMM.It is worth highlighting that the exchange control regulations only apply to the residents of
As set out below, the warrant was issued in terms of s5(1)(b) of the Extradition Act 67 of
The charges against Mr. Mawere were of fraud, alternatively contravention of the Exchange
Control Act of Zimbabwe.
What is strange in terms of this warrant is that it is stated that: “IT HAS BEEN ALLEGED THAT
HE (MAWERE) HAD COMMITTED THE SAID OFFENCES IN THE REPUBLIC OF SOUTH AFRICA
AND THEREFORE HE IS A PERSON LIABLE TO BE SURRENDED TO ZIMBABWE.”
Professor Tichaona Mupasiri said: “As the Director of Public Policy at FOSMM, I had never
looked at this warrant to truly appreciate the complicity of Interpol and South African laws
enforcement officers in giving Zimbabwe title and jurisdiction to prosecute a South African
citizen in Zimbabwe for crimes allegedly committed outside its border. It is mind boggling to
learn that this fatally defective warrant was recognized and enforced in South Africa.”
It is common cause that Mr. Mawere was arrested in South Africa based on an affidavit in
support of the request by the Zimbabwean authorities to extradite him. The affidavit is
It is clear from the above that the deponent accepts that Mr. Mawere was wanted in
Zimbabwe for fraud allegedly committed in South Africa. It is not in dispute that the
Zimbabwean Exchange Control Act applies to facts and circumstances that relate to the
affairs of the Republic of Zimbabwe.
On 22 May, 2004, which was a Sunday, Patrick Chinamasa, who was the Minister of Justice,
Legal and Parliamentary Affairs at the time is alleged to have caused the letter below to be
written and signed by the then Director of Public Prosecutions, Mr. Joseph Musakwa.
It is believed that Mr. Musakwa was rewarded the following year when Chinamasa
recommended him for appointment as a judge.
On 3 June 2015, he was promoted to be in the Supreme Court of Appeal as a judge. Mr. Musakwa in his letter to the SA Director of Prosecutions knowingly and intentionally
falsely represented that Mr. Mawere was resident at #46 Lawley Avenue, Lincoln Green,
Belvedere for the purpose of inducing South African law enforcement officer to process a
fatally defective and criminal warrant based on facts that he knew did not exist.
It was true and fact that the alleged crime occurred in SA yet here Musakwa acted criminally
by inserting that the Zimbabwean address was the pace Mawere used when in Zimbabwe
when he knew this was false and fraudulent.
This misrepresentation by Musakwa went unnoticed by the SA and Interpol authorities
because it was couched in a manner that represented Mawere as a Zimbabwean resident
who was subject to the Exchange Controls of Zimbabwe.
Mr. Musekwa further falsely misrepresented that Mawere was wanted for prosecution in
Zimbabwe on charges of fraud alternatively the Exchange Control Act when he was fixed
with the knowledge that the allegations related to a court order granted in SA.
The Zimbabwean fraudulent warrant of arrest was issued by the then Provincial Magistrate
Judith Tsamba on 17 May 2004 in Harare.
Who is Judith Tsamba and what became of her? She later became the Company Secretary
for ZESA but it is significant that two months before she did her hatchet job in relation to
Mawere, this is what happened:
On Sunday, 22 May 2021, Interpol was roped into the abuse of public power and the letter
below was written to by Interpol Zimbabwe to Interpol South Africa requesting that Mr.
Mawere be arrested in South Africa to answer to allegations of exchange control violations
purportedly committed in South Africa.
What is worth highlighting is that the request was made for the immediate arrest of Mr.
Mawere and the passport used in this letter was his Zimbabwean passport to create the
impression that he was a resident of Zimbabwe when in truth and fact, he was a nonresident of Zimbabwe making the allegations of exchange control regulations inappropriate
for the facts alleged.
On 29 June 2004, the extradition application was dismissed as set out in this article
https://www.iol.co.za/news/south-africa/sa-court-refuses-to-keep-zim-tycoon-in-jail216105.Mawere’s lawyer, Michael Salomon, of Salomon-Lipshitz, through Advocate Lawrence Hodes, had argued that the Zimbabwean approach was contrary to South Africa’s principles
By their own admission, the Zimbabwean authorities were not ready to proceed with the
case and it would be unfair to keep Mawere on remand, the magistrate said.
The decision means Mawere gets back his passport and R50 000 bail money. “All charges
against you are dropped, you can go,” the magistrate told him.
It is common cause that after the failure to extradite Mawere, Chinamasa on 9 July 2004,
issued specification order against Mawere in terms of the Prevention of Corruption Act using
the same facts and circumstances of the extradition application alleging that Mawere had
committed offences in SA that were punishable in Zimbabwe.On 13 August 2004, Chinamasa appointed Assistant Commissioner Mangoma to investigate
On 26 August, 2004, SMM and related companies deemed to be under Mawere were
Set out below is Chinamasa’s version of the facts and circumstances leading to the
extrajudicial divestment of the control and direction of SMM on 6 September 2004.
THE MANIKAI FACTOR IN FORMULATING AND PROSECUTING THE RECONSTRUCTION ACT
On paragraph 5.7 of Chinamasa’s affidavit to confirm the reconstruction order that he had
issued in relation to SMM, he states that the Reconstruction Regulations that were issued in
terms of Statutory Instrument 187 of 2004, there was no provision for any judicial
involvement in relation to the reconstruction of SMM.
The Attorney General’s Office Act provides as follows:
It is true and fact that all the government work pertaining to the prosecution of the
Reconstruction Act in relation to SMM has been exclusively outsourced to Manikai.
It is alleged that the regulations that preceded the Act were not drafted and processed by
the Attorney General’s office.
Manikai played a key role in the creation of the Reconstruction Regulations.
This screenshot gives the public a glimpse of a conspiracy to subvert rules, laws and norms
that play a vital role in underpinning a democratic constitutional order.It provides a concrete narrative that Manikai was not working alone but was part of an
orchestrated team of nameless and faceless citizens with the exception of President
Mnangagwa that he mentions are the trophy of the conspiracy to be delivered to statehouse
by any means necessary.
It helps people connect the rationale and thinking behind the coup and, therefore, it is not
surprising that his narrative speaks to the actual events that preceded the decision to use
public power to destroy anything that stood in their way to enable President Mnangagwa
succeed the late President Mugabe.
The fact that Manikai could openly connect the succession intent of 2004 with the
reconstruction laws sends a chilling message of the threat to democracy he personally poses
and more significantly that absent this important revelation the distortions that has
characterized the SMM matter would go unnoticed.
The fact that the President was part of this naked onslaught on the constitution that he took
an oath to protect and promote leads to one inescapable conclusion of whether he is fit for
When he assumed office and knowing the criminal abuse of public power to divest and
deprive of rights and freedoms in relation to SMM, he would have taken steps to distance
himself from the serious fraud on the Zimbabwean people.
The fact that a big spin was at play in relation to the pathway of President Mnangagwa to
the statehouse must worry all citizens who are vested with the duty to protect the rule of
Manikai, a non-state actor was clearly a centra player but could not have committed this
fraud without the knowledge and active involvement of people who were the de facto
drivers of public policy during the Mugabe era.
Manikai continues to be close to the President and this alone shows that President
Mnangagwa sees no evil in the fact that the institution of the Presidency is tainted with
fraud and corruption.
The importance of Manikai’s admissions to public policy makes it impossible to ignore this
expose and it seamlessly provides a link with the genesis of the coup of 2017 against the
The SMM story shows that the people who were central in directing the reconstruction
affairs embarked on a deliberate campaign to undermine the rule of law.
They used corrupt means to divest and deprive the shareholders and directors of the control
and management of the company and this fact alone must worry any democratic and the
narrative of the ZANU-PF ascendancy demonstrates how far Manikai as a lawyer regards
contemptuously the oath he personally took to uphold.
Organizing the reconstruction affair was in itself a criminal act and the participation of
Manikai in persecuting and prosecuting this fraud disqualifies him from practicing law and
asserting any privilege as a lawyer.
Clearly Manikai is fixed with the knowledge of what factors at play in this fraud and by
sharing his narrative he automatically waived any right to privacy and confidentiality.
It is trite that democracy depends on public trust and the integrity of the people privileged
to possess and exercise public power but the facts of the reconstruction and the coup of
2017 shows the audacity of the actors in the drama and confirms that Manikai and his
undisclosed conspirators have absolutely no regard for any democratic and rule of law
norms and values.
The disinformation that characterized the reconstruction of SMM was classic and is similar
to the disinformation that was used in relation to the 2017 coup.
The Zimbabwean public was falsely fed the spin that:
a. Mawere had externalized substantial funds from Zimbabwe.
b. Mawere had fled the country because the allegations of fraud against him were
c. Mawere was a resident of Zimbabwe.
d. The alleged fraud was supported by facts known to exist in Zimbabwe.
e. Because of the alleged externalization, SMM and related companies were forced to seek
government financial assistance hence the construction of state-indebtedness.
f. The use of Presidential Powers was the best remedy to deal with the situation.
g. Manikai and Gwaradzimba were the best people to prosecute the alleged fraud.
h. It was in the interests of justice and public policy for asset forfeiture to be invoked as a
remedy using public power.
This fraud was committed on the people of Zimbabwe and on the institutions of parliament
and the judiciary with Manikai playing a pivotal role in the prosecution.
Behind the curtain of reconstruction was a criminal syndicate that President Mnangagwa
was an integral part of where the future of so many was stolen with impunity.
Manikai through his astonishing admissions has already thrown President Mnangagwa under
Manikai has exposed that the ideology of coups had deep roots.
That the support of the judiciary was given in this onslaught and the fact that they have not
been made accountable says a lot about the strength of democracy and the culture of the
rule of law in Zimbabwe.
The reconstruction affair was not the end of the ideology of coups but the beginning of
It is important to stitch the facts of SMM reconstruction and its actors to the 2017 actors.
The authors of the coup strategy stood to benefit and are clearly benefiting from the fruits
of their criminal conduct.
Manikai is not only close to President Mnangagwa but is a central player in using the law as a
weapon to annihilate democracy and the rule of law.
Manikai gives a insightful portrait of what happened to justify the use of public power in
relation to the affairs of SMM and sticks him in the same den with President Mnangagwa.
The facts of SMM clearly expose the role he has played in using public power to attack the
rule of law using his profession as a weapon.
The right to appoint and remove directors of SMM just like the power of citizens to elect a
President was divested from them using extrajudicial means.
The rule of law compels Manikai to assist in the search for the truth and in asserting the
supremacy of the constitution which places no one above it.
Zimbabweans in general are in the dark and an explanation is needed as to what the
President knew and didn’t know about the events and facts of the reconstruction affair in as
much as the facts of the coup of 2017 that Manikai is defending in an open court.
The rule of law is better protected when transparency is the order of the day.
MANIKAI – THE ARCHITECT AND ENFORCER OF INJUSTICE IN RELATION TO SMM
Manikai’s relationship with SMM needs to be unpacked to test if he suffers from any conflict
of interest.It is true and fact that Manikai, who was working for the firm, Gill, Godlonton and Gerrans
(GGG), acted for Africa Resources Limited (ARL), the company that acquired the entire
shareholding of SMM Holdings Limited (SMMH), the sole parent of SMM.
SMMH is a UK registered company.
At the time SMM was placed under reconstruction Manikai and his firm, Dube Manikai and
Hwacha, had a relationship of attorney to client one.
Manikai in his admissions referred to above, states that a major fallout occurred with
Mawere and this resulted in him taking sides with President Mnangagwa.
What is known is the following:
a. Manikai became Chinamasa’s lawyer in the prosecution of the reconstruction affair.
b. At all material times, Chinamasa was the Minister of Justice and not the Attorney
c. The Attorney General has to date not been involved directly or indirectly in the
prosecution of the reconstruction in relation to SMM.
d. Manikai has exclusively handled all legal matters including using his firm’s address as the
proxy address of the AG.
e. No records exist in the public domain showing the contractual nexus between DMH and
the AG in relation to the SMM affair.
f. Manikai from the onset became the sole legal advisor to the Administrator of SMM,
Gwaradzimba, who was appointed by Chinamasa.
g. No facts exist as to when Manikai was appointed to act for SMM while also acting
purportedly for the government of Zimbabwe.
h. The distinction between the GOZ and Chinamasa in relation to SMM’s affairs never
existed as the facts show that only Chinamasa had sole control of the affairs of SMM.
i. Manikai knew the facts and circumstances of informing the decision to create a law or
regulations whose sole aim was to divest the shareholders and directors of the control
and direction of SMM.
j. The law in question was founded on the existence of a new identity of a company solely
on account of alleged state indebtedness.
k. That a company identified as state indebted could be subjected to attack outside the
provisions of the Companies Act.
l. That the Minister of Justice would unilaterally and arbitrarily be vested with the power
to issue a limiting order without the involvement of the courts.
m. In relation to SMM, there was no provision for the court to be involved in determining
the existence of a debtor to creditor relationship with the state, the quantum of the
alleged indebtedness and the whether the alleged debt was due and payable.
n. Manikai would have known as an officer of court that a law that offends the separation
of powers and equality before the law was incurably defective and as such was no law at
all yet he brazenly proceeded to recognize and enforce it.
o. Manikai has been the permanent feature of this affairs since 2004 confirming his
conviction that this law though it poses so grave a risk to the rule of law, is
MANIKAI IN RELATION TO TAP – ZAMBIA
Manikai has played the role of a lawyer to the Administrator of SMM, a creature of statute,
whose authority to be related to SMM as its representative was derived from the regulations
that preceded an Act of Parliament.In this position, SMM was ostensibly his client in Zimbabwe, and as such as a legal
practitioner, his profession would have limited him to act for the GOZ, a party that had
created a law to alienate SMM’s shareholders and directors without any due process of the
Notwithstanding, Manikai saw no constitutional violation in his conduct and still sees not
conflict at all.
Below is a letter dated 30 January 2006 and copied to Manikai:
It is evident from the subject matter that the author, a creature of Zimbabwean regulations
and laws, that there was no doubt in his mind that he possessed legal and constitutional title
to write the letter.
The subject matter was in relation to the reconstruction of TAP, a Zambian juristic entity,
and the dissolution of the board of a Zambian company.
It is significant that the then Chairman of TAP was the recipient of this bizarre letter.
The Chairman was a director of TAP having been appointed by the shareholders of the
In terms of the Zambian Companies Act, the title and authority to appoint and remove
directors is vested with the company’s shareholders.
Gwaradzimba is a Chartered Accountant and not some corporate pedestrian.
Below is an extract from the letter referred to above:
It can not be noted from the extract above, that Gwaradzimba knew that the only nexus to
TAP was by virtue of the regulations promulgated by President Mugabe and in terms of
international law, the application of such regulations was confined to the territory and
jurisdiction of Zimbabwe yet he brazenly asserted that TAP located outside Zimbabwe was
bound by this law and as such was deemed to under reconstruction and he derived his title
to control and manage TAP.
Astonishingly, he asserts that TAP is an associate of SMM simply based on his interpretation
of Zimbabwean regulations and with no regard to the territorial integrity of Zambia.
He proceeded to nullify the resolutions adopted by the shareholders of TAP to dissolve the
company’s directors and appoint new directors.
Gwaradzimba and Manikai are known as belonging to President Mnangagwa’s inner circle.
Both are professionals with legal and corporate governance knowledge to know better that
the right to appoint and remove directors falls within the ambit of bill of rights that are
entrenched in the constitution.
Notwithstanding, set our below is what Gwaradzimba stated in the letter:
He asserts a right that he does not possess and uses a Zimbabwean law to attack the rule of
law in Zambia. He states that he is required in terms of Zimbabwean regulations to assume
the control and management of SMM.
He then confers on himself what he refers to as plenary powers and authority over TAP, a
Zambian juristic entity.
From 30 January 2006, the board of TAP was hijacked using a Zimbabwean regulation.
Below is an extract of the same letter that shows that Manikai and Mundashi were both
copied this letter and were or must have been familiar with its contents and their legal and
It is trite that a lawyer has a responsibility to the constitution and as such it was incumbent
upon Manikai and Mundashi to be alive to the criminality in the construction and legality of
the proposition that a Zimbabwean law or regulation could apply extra-territorially in
relation to the affairs of TAP.
Lawyers are public citizens and as such cannot escape being accountable for the actions
especially if the actions offend the constitution and limitations imposed on all citizens that
are inherent in it.
Clearly in giving life to a scheme that resulted in him personally benefiting as a director of a
company that fell outside the jurisdiction of Zimbabwe, Manikai knew that his conduct was
inimical to the rule of law.
Ordinarily, one would expect lawyers to understand and define their role as constructors of
constitutional meaning but this case exposes the criminality that is now so pervasive in the
legal profession that allowed this travesty of justice to take place and money to be stolen to
the prejudice of TAP.
The constitution compels lawyers to practice professional responsibility that requires
lawyers to be subject to the rule of law and their responsibility to go beyond client
As a consequence of this fraud, Manikai became a fiduciary of TAP and as such fully
associated himself with the crime perpetrated against TAP.
President Mnangagwa challenges Mupasiri’s locus standi
- 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.
- He also asked this court to determine if the impugned conduct is constitutional in terms of s167(3).
- The application was issued and served just before Christmas or 17 December 2021.
- The President did not waste any time in responding. He filed his answering on 24 December 2021.
- In his response, raised the issue in limine challenging Mupasiri’s locus standi.
- The President averred that: “A proper consideration of the application shows that it champions the cause of SMM Holdings Limited.”
- 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.
- “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.
- 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.”
- The President proceeded to state as follows: “Mr Mutumwa Dziva Mawere has also deposed to an affidavit in support of the application.”
- 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.”
- 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.”
- 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.”
- 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
[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?
Mupasiri’s s167 Challenge Unpacked
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 :
- 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.
- Zimbabweans have to be enlightened become fully conscious of their fundamental rights and recourse in case such rights are violated
- It fosters and encourages active citizenry towards upholding and defending their rights and the constitution
- 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:
- 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.
- 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
- 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
- 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.
Can the ConCourt Impeach President Mnangagwa?
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.
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.”
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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