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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.”

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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