The Malaba-led Constitutional Court’s reputation is on the line following the application by Mr. Tichaona Mupasiri in terms of s167(2)(d) and s167(3) testing whether the promise that no one is above the law is alive and well under Zimbabwe’s constitutional dispensation ushered by the 2013 Constitution.
What is the Rule of law:
President Mnangagwa’s Key Man Exposed
- President Mnangagwa’s Key Man, Mr. Edwin Manikai’s shenanigans are being exposed in a landmark constitutional case that was launched by Mr. Tichaona Mupasiri on 17 December 2021.
- The Respondents are President Mnangagwa and Mr. Edwin Manikai, a prominent lawyer in Zimbabwe, who also acts the Chairman of an Advisory Council that was created by President Mnangagwa to bridge him to the private sector.
- At the core of the dispute is message that Manikai shared with a member of the Friends of SMM (FOSMM) group that was then shared in the group.
- This message contained a scandalous narrative that helps explain the demise of the SMM group and the role that Manikai played in prosecuting the dramatic fall of Mawere’s business empire.
- This message set out below does not require a rocket scientist to interpret it:
- When this matter came for discussion in the FOSMM group, Mr. Mutanda tried to distance himself from it in order to protect Manikai, his nephew.
- The more he tried to deny the veracity of the serious and malicious allegations against the President, the more people in the group became determined and fortified in using the courts to establish the true facts that led to the unprecedented abuse of public office to divest a private individual of his property.
- This material revelation by Manikai was the first since 2004 pointer to the alleged direct involvement of Mnangagwa in the facts leading to the promulgation of the reconstruction decree that permitted Chinamasa, the current Secretary of Finance in the Politburo, to issue an extrajudicial order in the full knowledge that the judiciary will acquiesce and simply rubber stamp anything that Mnangagwa wished to happen.
- The relationship between Mawere and Mnangagwa has always been shrouded in mystery with many people believing that Mawere’s Godfather was Mnangagwa and the demise of SMM was a consequent to a fallout between the two.
- On 17 March 2021, Manikai confirmed the political context of the fallout and linked this to the demise of SMM through the reconstruction laws.
- A decision was made in the group to test the allegations in a court of law. That is where Mupasiri who was as disgusted as many in the group that Manikai’s serious allegations needed to be repeated under oath.
- He chose to use s167(2)(d) and s167(3) as his constitutional weapons of attack.
- The power hold public officers including the President accountable to the Constitution was granted exclusively to the courts by the 2013 Constitution. Based on this constitutional remedy, Mupasiri sought refuge in it to test whether the President can be held accountable for what Manikai said was his pivotal role in creating the reconstruction laws.
- “My point of departure was simply that by including Manikai as a Second Respondent, the President would be given an opportunity to openly and transparently distance himself from the corrupt and despicable conduct by Manikai using his firm, DMH, in undermining the rule of law that the President took an oath to promote and protect.
I had no idea that even the President would seek to shield Manikai from giving his version of what transpired before the introduction of the reconstruction regulations using state of emergency and his specific role in prosecuting this draconian law.
The President in paragraph 4.2 of his replying affidavit to my application stated in relation to Manikai’s role in relation to SMM:
“A substantial portion of the application relates to the alleged conduct of second respondent, a private citizen.
The alleged conduct of the second respondent cannot be relied upon in an application of this nature.
It is impermissible in an application of this nature for the court to enquire into anything other than the conduct of a president,” said Mr. Mupasiri, the Director of Public Policy who is leading the Justice Under Rule of Law (JUROL) initiative that is powered by FOSMM.
- One would have expected President Mnangagwa to recognize that it is unconstitutional for a private citizen like Manikai to be intricately and personally invested in the politics of succession to allow him to think he is above the law simply because of his proximity and influence over the choices and actions of the President.
- The 2013 marked and ought to have marked a clear departure from the state power sharing arrangement provided for under the Lancaster Constitution to a new jurisprudence that should by now be well established.
- We are now in a new order that has evolved from the one prevailing in 2004 when SMM was hijacked with the judiciary possessing no power to review the conduct of those wielding public power like the President and as such they were insulated and shielded from any scrutiny.
- The Constitution compels all citizens to use s167 as a weapon to test whether the conduct of all public affairs (by both private and state actors) must measure up to the constitutional imperatives under the watchful eye of the judiciary, which in turn is also obliged to always venerate the Constitution.
- The fundamental principle and its concomitant legal ramifications that Mupasiri is asserting in his landmark application are spelled out in s 2 of the Constitution as follows:
- 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.
- 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.”
- Unknown to a person like Manikai who is a practicing lawyer is that the 2013 constitution makes a break the practice of turning a blind eye to constitutional obligations.
- The rule of law and the supremacy of the Constitution as some of the core founding values and principles that are entrenched in the Constitution leaving the judiciary with no title to apply any discretion when asked to determine if public office bearers are or should be immune from taking their constitutional obligations seriously.
- The Malaba-led court is being tested to see if it has embraced the doctrines of constitutional supremacy and accountability.
- Both the President and Manikai must be aware that they both have an obligation to protect the Constitution and to promote democratic governance in Zimbabwe.
- The President specifically in terms of s90(2)(c) has the obligation to uphold, among others, the rule of law and supremacy of the Constitution, two of the founding values and principles set out in the Constitution.
THE INVASION OF ZAMBIA BY MANIKAI & CO.
- It is fact that Manikai was the driving force in the extraterritorial application of the Zimbabwean regulations that when properly construed were created to attack the very constitution that he swore to protect and promote.
- The fact that he got away with this in Zambia, is one thing, but the reality that the President would seek to protect Manikai’s presumed private citizen status against overwhelming evidence that he personally benefited from the fraud that was enabled by the law that he alleges the President played a key role in creating is chilling.
- Set out below are useful comments that speak to the growing concern that President Mnangagwa’s key associates are not subject to the limitations imposed by the Constitution:
[1/16, 10:54 PM] Tendai Mazenge: I have read the above concerning the fraudulent activities of Gwaradzimba and Manikai over TAP. Armed with all the evidence provided iam pretty sure we can stand a chance in correcting the wrongs that Manikai and Gwaradzimba did over the fraudulent acquisition of TAP using a law from Zimbabwe in Zambia. They further made themselves Directors of TAP after dissolving the TAP board of Directors. To make matters worse they stole $700 000 dollars plus $300 000 that was paid as legal fees. These people must be brought to book. Misrepresentation of facts is a criminal offence. They lied that TAP was a subsidiary of SMM which was not true. The evidence is overwhelming.
[1/19, 1:48 PM] Tendai Mazenge: It’s good that most people that didn’t know anything about SMM and the Reconstruction act are beginning to understand what really happened. It’s a well calculated criminal offence that was created by these vampires masquerading as government operatives while fleecing innocent citizens of their wealth and companies.
[1/19, 2:03 PM] Tendai Mazenge: Yes. Manikai was a lawyer appointed by Chinamasa to deal with the SMM case in Zimbabwe but he went on to misrepresent facts about TAP being a subsidiary of SMM which was not true. He smuggled a law from Zimbabwe to Zambia which again is fraudulent. He then became a Director of TAP together with Gwaradzimba which again is a fraud. He then goes on to siphon 700 000 dollars from TAP after dissolving the TAP board and imposed themselves in a company they have no shareholding capacity. Another 300 000 grand was taken from TAP for legal fees. Manikai and Gwaradzimba had no right to do what they did, enriching themselves and taking ownership of a company they never created or invested in. The Judge in Zambia who agreed to use a law from Zimbabwe to be used in Zambia was at fault and has to be sued as he is also an accomplice in this white-collar criminal case.
[1/19, 2:22 PM] Tendai Mazenge: DMH was appointed by Chinamasa to represent government without the knowledge of the AG who is the chief legal advisor to the government. Chinamasa under the instruction of Mnangagwa appointed DMH.
- The Mundashi scandal manifested in form of an invoice below. It will be noted from the invoice that:
- The invoice was vatable.
- It was dated 7 February 2006 or eight days after the Kajimanga judgment of 30 January, 2006.
- The invoice number was 05/181
- It was addressed to DMH, the same law firm that is representing the President in the Mupasiri and Musengezi challenges.
- It confirms that this invoice related to services rendered by Mundashi via the agency of Mulenga, Mundashi and Company (MMC).
- DMH is a Zimbabwean law firm and MMC is a Zambian law firm.
- The subject matter for which the invoice was made was the self-created dispute that DMH instructed MMC to prosecute based on a fraudulent misrepresentation that TAP was an associate of SMM under reconstruction.
- The joke is that MMC was paid to do research on the law and preparing a preliminary opinion on the legality of the fraudulent scheme.