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 :

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.