President Mnangagwa challenges Mupasiri’s locus standi

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?