Section 97(1) of the Constitution of Zimbabwe allows the Senate and National Assembly, a joint resolution passed by at least one-half of their total membership, the discretion to resolve the question of whether or not the President or a Vice-President should be removed from office on the grounds of a serious violation of the Constitution or the law; serious misconduct; or inability to perform the functions of office —
a. serious misconduct;
b. failure to obey, uphold or defend this Constitution;
c. wilful violation of this Constitution; or
d. inability to perform the functions of the office because of physical or mental incapacity;
should be investigated in terms of this section.
In South Africa, the Constitutional Court held in Economic Freedom Fighters and Others v Speaker of the National Assembly and Another that the power to remove the President from office is available to the National Assembly only if one of the listed grounds is established.
In the case of Zimbabwe, the late President Mugabe capitulated before the test to remove him through parliamentary impeachment was exhausted.
The only other weapon to test whether the President has failed to fulfill his constitutional obligations in terms of the Zimbabwean constitution is a s167 remedy.
This section provides as follows:
167(2)(d) 2. Subject to this Constitution, only the Constitutional Court may determine whether Parliament or the President has failed to fulfill a constitutional obligation and s167(3) reads as follows: the Constitutional Court makes the final decision whether an Act of Parliament or conduct of the President or Parliament is constitutional, and must confirm any order of constitutional invalidity made by another court before that order has any force.
It cannot be disputed that the above-mentioned grounds are open-ended and as such are subject to subjective interpretations.
The Constitutional Court of Zimbabwe is vested with the exclusive discretion to decide based on facts and law what conduct of the President constitutes a serious violation of the Constitution.
At the core of Mupasiri’s s167 attack, is whether the conduct that triggered his application or informed his cause of complaint is conduct that supports the relief sought and constitutes a breach of President Mnangagwa’s oath.
Mr. Mupasiri who is a self-actor alleges that President Mnangagwa failed to uphold the rule of law when he ignored to respond to the malicious and scandalous allegations that were presented as fact on 27 March 2021 by his lawyer, Mr. Edwin Manikai, that he was the driving force behind a conspiracy to clandestinely punish Mawere by divesting him of the control and direction of all his 26 Zimbabwean companies employing about 20,000 employees using a law that was specially crafted to catch all Mawere’s companies in a net specifically created using public power by Mnangagwa’s succession project brigade.
Mr. Mupasiri who is a member of FOSMM and a Director of Public Policy for the Justice Under Rule of Law Initiative, said: “Manikai put this jigsaw puzzle in terms that any layperson can easily understand – that Mawere was catapulted into business by Mnangagwa when he purportedly acquired SMM in March 1996. According to Manikai, Mawere began to meddle with politics and became big-headed to the extent that he actually aligned himself with the political fortunes and aspirations of the former Vice President.
Manikai reminded Mutanda that Mawere’s inevitable downfall was written by him when he chose to spite his Godfather Mnangagwa, who when he learned of Mawere’s alleged political prostitution and treachery deployed his fixers including him to teach Mawere a lesion and the rest is history.
Manikai eloquently speaks of the involvement of the late Mugabe who ordered an investigation into the affairs of SMM that resulted in a series of events including the use of Presidential Powers (Temporary Measures) reversed for use by the President in emergency cases.
In terms of the draconian regulations promulgated by Mnangagwa’s fixer, Hon. Chinamasa, an order was issued without any judicial and parliamentary involvement whose effect was to deprive and divest Mawere of the control and management of SMM.
The list of the affected companies and the instrument used by Gwaradzimba to put them into the net of looted assets can be found on this link: https://online.flipbuilder.com/mmawere/atmk/.
In the Economic Freedom Fighters and Others v Speaker of the National Assembly and Another matter, the Constitutional Court explained as follows:
“But the drafters could not have contemplated that member of the Assembly would individually have to determine what constitutes a serious violation of the law or the Constitution and conduct on the part of the President which, in the first place, amounts to misconduct and whether, in the second place, such conduct may be characterized as serious misconduct. If this were to be the position, then we would end up with divergent views on what is a serious violation of the Constitution or the law and what amounts to serious misconduct envisaged in the section. And since the determination of these matters falls within the exclusive jurisdiction of the Assembly, it and it alone is entitled to determine them. This means that there must be an institutional pre-determination of what a serious violation of the Constitution or the law is. The same must apply to serious misconduct and inability to perform the functions of the office.”
In the Mupasiri landmark case, it is the Constitutional Court of Zimbabwe that is seized with the task of engaging with the facts in the cause to determine whether a serious breach occurred in relation to the President’s refusal and failure to act to protect the rule of law under his watch by entrenching the enforcement of a law that was used with precision in relation to SMM with no judicial or legislative complaints to the affairs of Hwange Colliery Company Limited (Hwange) and Air Zimbabwe Private Limited (Air Zimbabwe).
With respect to the impeachment of a President, this is what John Hatchard, in an article published in 2000 in the Journal of African Law, suggested:
“[a]rguably the true basis for impeachment is that the actions of the incumbent (or a failure to act) undertaken in his/her official capacity have rendered that person unfit to exercise the office of president… [and thus] had a destructive impact upon confidence in public administration.”
In the realm of impeachment of a President, the key role played by a President as head of both the executive and as head of state plays a part, especially having regard to the lack of shared understanding as to what the duties of a President are and are not, this Application by Mupasiri though unprecedented provides a unique opportunity for the Constitutional Court to step up to the place by objectively testing based on evidence whether President Mnangagwa is fit for the highest job in relation to governmental affairs in the country.
The poignant and apt description by Chief Justice Mogoeng Mogoeng of the role played by the South African President in our constitutional democracy in his judgment in Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly is instructive:
“His is indeed the highest calling to the highest office in the land. He is the first citizen of this country and occupies a position indispensable for the effective governance of our democratic country. Only upon him has the constitutional obligation to uphold, defend and respect the Constitution as the supreme law of the Republic been expressly imposed. The promotion of national unity and reconciliation falls squarely on his shoulders. As does the maintenance of orderliness, peace, stability, and devotion to the well-being of the Republic and all of its people. Whoever and whatever poses a threat to our sovereignty, peace, and prosperity he must fight. To him is the executive authority of the entire Republic primarily entrusted… Unsurprisingly, the nation pins its hopes on him to steer the country in the right direction and accelerate our journey towards a peaceful, just, and prosperous destination, that all other progress-driven nations strive towards on a daily basis. He is a constitutional being by design, a national pathfinder, the quintessential commander-in-chief of state affairs, and the personification of this nation’s constitutional project.”
it may be argued that some private conduct of the President should also render him or her unfit to be president.
In relation to s167 attack or remedy, it is trite that the power granted to the courts by the 2013 Constitution to hold public officers accountable to the Constitution marks a clear departure from the state power-sharing arrangement provided for under the repealed Constitution and the jurisprudence that emerged under that order, is now commonplace.
The Zimbabwean constitutional morality and order have evolved from one where the conduct of a powerful and feared President Mnangagwa would not be subject to the scrutiny of citizens and is so doing allowing him to be above the law and not subject to it.
As a consequence, the few who enjoy proximity to his power and influence automatically behave as if they are unaccountable and unpunishable.
The facts of SMM confirm that Mnangagwa’s crew like Gwaradzimba and Manikai behave as if they are the law and as such are immune to any scrutiny let alone any judicial review as they have the power and influence to determine who should be on the bench or not.
“It is not in dispute that President Mnangagwa wields so much public power that it becomes intimidating for any judge in his right mind to bring him to order.
It is not in dispute that under Mugabe’s Presidency, a law that is inimical to the rule of law was birthed and prosecuted with no judicial resistance at all, and a decree that offends public policy was seamlessly converted into public law.
This law outlived the GNU and no noise about this law’s repugnancy has been heard from the circles and spaces of those who claim to be the guardians of a Zimbabwe that is free from corruption,” said Mr. Brian Manayati, a member of the Justice under the Rule of Law (JUROL) initiative that is powered by members of the Friends of SMM group.
“This the first time that the conduct of President Mnangagwa who has hitherto been untouchable is under scrutiny based on Manikai’s irresponsible utterances that need to be openly and transparently ventilated in an open court.
Will the promise of independence and impartiality be delivered by a Malaba court? This is the 64-million-dollar question that should hopefully be answered when the matter is heard on 9 March 2022.
I, however, am not too confident that this matter will be treated with the seriousness it deserves.
The country cannot move forward if the conduct of the first citizen cannot be tested to determine if it measures up to the constitutional imperatives under the promised watchful eye of this apex court that was given exclusive jurisdiction to ensure that the supreme law of the country is binding on all citizens without any exception,” said Mr. Shephard Kembo, a member of JUROL and FOSMM.
PATEL JA as he was known then, commented in the matter re-Judicial Service Commission v Zibani & Others SC 68/17 as follows:
“It is axiomatic that Zimbabwe is constitutional in contradistinction to parliamentary democracy. See Biti & Anor v Minister of Justice, Legal and Parliamentary Affairs & Anor 2002 (1) ZLR 177 (S) at 190A-B. This fundamental principle and its concomitant legal ramifications are codified 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.”
It is significant that in making the application, Mupasiri relied on s2(2) to seek the intervention of the Court to determine whether President Mnangagwa enjoys any discretion when informed of corrupt activities and the abuse of public funds in conduct that implicates negatively but to act positively in order to protect the rule of law even if this means isolating himself from his trusted but corrupt legal advisors.
President Mnangagwa in his response has boldly asserted that he owes no duty to the Constitution and he seeks refuge for not fulfilling his constitutional duties on the premise that the captured bench that the late Chidyausiku presided over should be the law on the constitutionality of a law that subordinates the role of determining disputes to the Courts as confirmation platforms in relation to extrajudicial orders granted without any due process of the law by his Ministers like Ziyambi who made Mangota J famous for refusing to confirm a reconstruction order granted in relation to Hwange.
It is worth highlighting that Advocate Thabani Mpofu who is acting for President Mnangagwa acted on behalf of the aggrieved shareholders of Hwange in the Mangota J matter.
It is worth noting that HLATSHWAYO JCC opened his judgment in Chironga and Another v Minister of Justice, Legal and Parliamentary Affairs and Others CCZ14/20 by noting that:
“One of the crucial elements of the new constitutional dispensation ushered in by the 2013 Constitution is to make a decisive break from turning a blind eye to constitutional obligations. To achieve this goal, the drafters of the Zimbabwean Constitution Amendment No 20 Act 2013, (“the Constitution”), adopted the rule of law and the supremacy of the Constitution as some of the core founding values and principles of our constitutional democracy. For this reason, public office-bearers ignore their constitutional obligations at their own peril.”
In Mliswa v Parliament of the Republic of Zimbabwe (CCZ 2 of 2021, Court Application CCZ 6 of 2020)  ZWCC 2 (29 March 2021, the Constitutional Court of Zimbabwe in determining whether the Parliament of Zimbabwe acted at all or omitted to act and, in so doing, failed to fulfill an obligation imposed upon it by the Constitution as envisioned by s 167 (2) (d) of the Constitution stated as follows:
“The power granted to this Court “to determine whether Parliament or the President has failed to fulfill a constitutional obligation” is a specific and deliberate mechanism introduced into the procedures of this Court to ensure that Parliament and the President fulfill their respective constitutional obligations. It is necessarily granted in clear and unambiguous terms to constitute the vehicle only through which the supremacy of the Constitution can be fully realized and the provisions of s 2(2) of the Constitution fulfilled in respect of Parliament and the President. It sets the tone for the exercise of constitutional jurisdiction by the other courts over all other wielders of state power. The mechanism is therefore a deliberate attenuation of the applicability of the doctrine of separation of powers among the organs of state.
For the effective and smooth functioning of the state, the comity that must exist between the judiciary and the other organs of state must, as before, act to restrain this Court from using its special jurisdiction save in strict compliance with the section.
Quite apart from the comity considerations, 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. These are clear-cut. They are an identified constitutional obligation and conduct or an omission by the respondent signifying a failure to fulfil the obligation. The two requirements are not consecutive but are concomitants, both of which must be alleged and proved.”
Mupasiri relies on s90(1) and s(90)(2)(c) in his application that provides as follows:
90. Duties of President 1. The President must uphold, defend, obey and respect this Constitution as the supreme law of the nation and must ensure that this Constitution and all the other laws are faithfully observed.
2. The President must– ensure the protection of the fundamental human rights and freedoms and the rule of law.
Mupasiri always relies on his interlocutory application on s62(2) to compel Manikai who although no relief was sought against him chose to oppose the Application in order that the truth in his involvement in the birth and prosecution of the SMM reconstruction affair is never disclosed to the public. This constitutional remedy provides as follows:
62. Access to information
2. Every person, including the Zimbabwean media, has the right of access to any information held by any person, including the State, in so far as the information is required for the exercise or protection of a right.