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Towards a shared understanding of Mupasiri’s Court Challenge

Peter Smith

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  1. President Mnangagwa, the First Respondent in the landmark application that was launched by Mr. Tichaona Mupasiri as a self-actor failed or refused to understand the true nature power exclusively granted to the Constitutional Court in terms of s167(2)(d) which provides that the task of the Constitutional Court is to:

“to determine whether Parliament or the President has failed to fulfill a constitutional obligation.”

  • Although the President in an affidavit that he clearly did not apply his mind on, he nevertheless avers in paragraph 4 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.”

  •  He then proceeds in paragraph 4.3 to state as follows:

“A person unhappy with such acts, cannot bring this kind of application.”

  • He concludes section 4 of his opposing affidavit by pre-determining how the application must be treated by the Constitutional Court in paragraph 5 as follows:

“For these reasons, the application is incompetent and ought to be dismissed.”

  • One can easily understand why the President would confidently conclude that Mupasiri’s application is incompetent but this is a precedent in Zimbabwe as an application of this nature would have been unheard of during the Mugabe era.
  • The existence and operation of s167(2)(d) taken in isolation from s167(3) that is specifically intended to provide a mechanism for testing and judging the conduct of the President in terms of constitutional compliance, simply to provide a specific and deliberate mechanism procedure to be guide the Court in establishing whether the President has failed to fulfil a constitutional obligation.
  • It is necessarily granted in clear and unambiguous terms to constitute the vehicle only through which the supremacy of the Constitution can be fully realised.
  • The provisions of s 2(2) of the Constitution impose a duty on all citizens without any exception and this sets the framework that informed Mupasiri to approach the Court.
  • It is a settled matter that the exclusive constitutional jurisdiction permits the Court to subject the conduct of a sitting President to account for his actions or inaction.
  • The mechanism, albeit misunderstood, is a deliberate attenuation of the applicability of the doctrine of separation of powers among the organs of state. In the case of the Reconstruction Act, it is entrenched in this law that a Minister can issue an order whose effect is to divest and deprive shareholders and directors of the control and management of a company without any prior judicial involvement relegates the role of the Court to confirm and not determine the legality and constitutionality of the Ministerial order.
  • Under President Mnangagwa’s watch the control and management of a company like Air Zimbabwe was divested and deprived without any judicial involvement.  To compound the problem, President Mnangagwa appointed Chinamasa to chair a board of a company under reconstruction when the very order issued by his Minister precluded a company under reconstruction to have two centres of power to direct and control it.
  • In the case of Hwange Colliery Company Limited (Hwange), President Mnangagwa’s Minister of Justice, Legal & Parliamentary Affairs, Hon Ziyambi issued an extrajudicial order in relation to the company. The aggrieved parties approached the Court to challenge the confirmation application that had been issued on an ex-parte basis. The Court dismissed Ziyambi’s application and the Learned Judge’s, Mangota J, reasoning on why the Court rejected the legality of an order issued without following the due process of the law was instructive.
  • It seems self-evident that to both President Mnangagwa and Manikai there is justification in the Court abdicating its duty to be the guardian of the rule of law that is required for the effective and smooth functioning of the state. This special jurisdiction that was reserved for the Constitutional Court by the framers of the 2013 Constitution was meant to limit corruption and abuse of public power. 
  • It cannot be disputed the ambit of the court’s jurisdiction under s 167 (2) (d) is procedurally limited by the requirements of the cause of action that is created by the section yet the opposition by the President is solely aimed at ousting this jurisdiction and effectively make his actions unaccountable and the crimes committed by Manikai unpunishable.
  • Mupasiri asserts that the President’s duties are prescribed and entrenched in the Constitution apart from those that apply to all persons. He cites the duties in s 90(1) and s90(2)(c) as relevant in his cause of action.
  • There are identified constitutional obligations and conduct or an omission that should inform the Court in determining whether the President has failed to fulfil the obligation.  
  • In order to discharge this obligation, Mupasiri had hoped that the President and his implicated legal advisors would at the very least assist the court in justifying why recognition and enforcing a law like the Reconstruction Act is in the interests of justice and the rule of law.
  • On the contrary, the tone of the opposing affidavit that is attached hereto speaks volumes about the contempt they hold Mupasiri for launching the application that is meant to give an honest and frank account of the involvement, if any, of the President in giving life to this draconian law that offends public policy and of grandfathering and protecting it since assuming office as President in November 2017.

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