What is and ought to be the role of the media in building an inclusive, open, accountable, and transparent constitutional state?
The Constitution of Zimbabwe is instructive in providing a framework for holding public office bearers to account for the trust reposited in them.
The President is subject to the constitution. In terms of s90(1) and s90(2)(c) of the Constitution, it is provided as follows:
It is also the case that all citizens are bound by the provisions of s2(2) as follows:
It is against the above backdrop that we have allocated space to the Justice Under Rule of Law (JUROL) initiative to raise awareness about the centrality of the rule of law in shaping and defining the personality and character of an aspirational and inspiring nation.
Our contributor in the series – JUROL – Constitutional Literacy 101 is Mr. Tichaona Mupasiri, an inductee of the Banking on Africa’s Future (BOAF) – 10,000 Points of Light (POL) Hall of Fame.
He is also a member of FOSMM and JUROL’s Director of Public Policy initiative.
As part of the public engagement and awareness promotion, this platform is available for citizens who have something to share on their experiences in the enterprise of building an accountable system of government.
The constitution’s s167 remedy is a powerful tool for “effective judicial intervention” as an alternative to a parliamentary impeachment process in holding the President to account for his conduct as prescribed in the Constitution.
It is not in dispute that the ideal concept of public office, expressed by the words, ”A public office is a public trust”, signifies that a public office bearer has been entrusted with public power by the people; that the officer holds this power in trust to be used only for their benefit and never for the benefit of himself or of a few.
It is the case that citizenship is not free as there are duties associated with it that must be discharged by all in the quest to build a society characterized by checks and balances.
Mr. Tichaona Mupasiri is the applicant in the matter under case # CCZ34/21 which is premised on s167(2)(d) and s167(3) of the constitution of Zimbabwe which provides that the Constitution Court has an exclusive jurisdiction to determine whether the first respondent has failed to fulfill Constitutional duties as set out in s90(1) and s90(2)(c) of the constitution.
Below is his article:
“The role of the media and its actors in promoting open, accountable, and transparent constitutional governance systems cannot be overstated.
After 42 years of independence, Zimbabwe represents an interesting case study of how the promise of a system founded on a general consensus that the respect of the rule of law would be a guarantor of inclusive and prosperous development, has been squandered by the commissions and ommissions of not just public office bearers but also by the eloquent silence of the majority of the citizens.
The propensity to deify individuals as the go-to person’s in the quest for sustainable answers to the question of what is required to lift people out of poverty did not end with Mugabe’s exit via the soft coup.
Questions have inevitably continued to be asked on the distinguishing features of the Mugabe v Mnangagwa eras but the media has been largely missing in actions.
The leading or shinning stars in the media arena have defaulted into political commissars and in so doing undermine the role of the media in exposing corruption and abuse of public power based on fact and not innuendoes.
Mugabe was deposed unconstitutionally and died a disappointed man yet his grip against his trusted colleagues who orchestrated a palace coup that was sanitized as a project restore enterprise remains misunderstood.
I was excited like many Zimbabwe to see Mugabe gone by any means necessary because it was obvious to me that he bore the brunt of the blame for undermining the rule of law with the support of a small coterie of his enforcers.
Mugabe’s relationship with the government of Zimbabwe ended unconstitutionally in November 2017.
The true nature of the separation or alienations had been disguised in the public psyche by the deliberate propaganda that his continued incumbency was detrimental to the quest for good governance and accountable use of public resources and power.
Mugabe was no saint but the facts of his exit that have informed a person like Sybeth Musengezi to use the courts to determine whether the methods used to pass the constitutional muster have inspired me to courageously invoke s167 of the Constitution to test whether the facts and circumstances of the hijack of the power and authority to control and direct SMM Holdings Private Limited (SMM) on 6 September 2004 was not linked to the ZANU-PF ascendancy conundrum.
I search all over for answers to the SMM questions that include:
1. If the reason for divesting and depriving SMM's UK registered shareholder, SMM Holdings Limited (SMMH) was that SMM was hopelessly state indebted, then jurisdictional facts ought to have existed to support the unprecedented use of public power to warrant the use of reserved state of emergency Presidential powers. 2.Was SMM indebted to the state? If so what is the state and was the state defined as a contracting party capable of asserting any rights including of a creditor in relation to a juristic entity like SMM? 3.Was the due process of the law followed to establish whether a creditor to debtor relationship existed between SMM and the state prior to Chinamasa invoking the Presidential Powers (Temporary Measures) in relation to SMM? If so, what was the quantum of indebtedness? How was this established and by whom? 4.How did the facts reach Chinamasa's, a Minister of Justice at the time, mind? The Minister of Justice in any constitutional republic has no jurisdiction over the financial affairs of the government and ordinarily has no access to contracts of private companies. 5.With respect to allegations that the ultimate beneficial shareholder of SMM, the natural person, Mr. Mutumwa Mawere, a non-resident Zimbabwean born person, had externalized funds led me to question the basis on which an external person could have been subjected to the exchange control regulations of Zimbabwe that is only applicable to residents of Zimbabwe.
The above-mentioned questions including how the solvency test was performed and established in relation to SMM, have continued to challenge my mind.
I looked to the media to find answers and regrettably, my searches provided a scary narrative that President Mnangagwa was the key driver of driving the cause and implementation of the demise of SMM with the active support of Chinamasa and others including Manikai.
The link between the Tsholotsho declaration and the SMM reconstruction was elusive to me until I got information that the actors (both state and non-state actors) were the same with the exception of a few in relation to the removal of former VP Joyce Mujuru who was unceremoniously ejected from the party and government on allegations of corruption.
Since 2014, the nation has been waiting for Mujuru to be convicted but alas she is a free person.
Mugabe was removed because he was alleged to have been surrounded by criminals yet the charge sheets against the targeted people exist not on paper but in the minds of the beneficiaries of her demise who were key players in the SMM affair.
The silence on the illegitimate and illegal use of public power for political and personal reasons is not limited to non-state actors but finds deeper and troubling expression in the very corridors of organs of state like parliament and the courts who have acquiesced to the tyranny of the architects of authoritarianism.
In relation to SMM, it is intriguing that President Mnangagwa told the nation in June 2018 that the government had won 22 out of 23 cases against Mawere.
When properly construed, no public office bearer would be proud in a constitutional republic of hijacking a company and use parliament and the courts to endorse this.
The link between President Mnangagwa and the affairs of SMM’s acquisition is well established in the public domain to allow rational people to easily conclude that the use of public power against SMM was justified if Mawere’s acquisition of SMM was tainted by corruption.
It is not unusual to hear people saying that Mawere is in exile after diverting the loot from the reach of Mnangagwa who had invested social, economic, and political capital in Mawere to play his part in his political ascendancy.
In June 2021, I chose to join the Friends of SMM (FOSMM) community simply to find answers to the questions above.
Unlike many WhatsApp groups, I found in the FOSMM groups robust and frank exchanges of ideas, experiences, insights, and knowledge that I had been yearning for.
With respect to the SMM issues, I found it refreshing that Mr. Mawere was always ready to provide the facts when requested to do so that led to the inescapable conclusion that public power was used to promote personal interests.
What shocked most was the Mawere house affair. I could not believe that Gwaradzimba could brazenly lie to Mawere that he had no knowledge of the facts regarding the hijacking of Mawere’s house using a public law as a vehicle.
The facts are that Mawere’s Mount Pleasant house that was purchased prior to his involvement in the SMM affairs was managed in terms of rental billing and collection by SMM staff members.
However, I learned that the effect of the reconstruction order issued in relation to SMM was to create a new creature called SMM UNDER RECONSTRUCTION that had no legal standing of its own as a company but as an organ of state that was created by an act of state.
Gwaradzimba displaced the board of directors of the SMM companies by virtue of a draconian decree.
SMM’s relationship with Mawere ended when Gwaradzimba was appointed as Administrator of SMM.
In the premises, there was no legal and constitutional basis for SMM to be involved directly or indirectly in the affairs of Mawere’s private property.
When I learned that SMM collected rent and for 17 years, the rent was never paid to the owner of the property, it dawned on me that Zimbabwe had descended into anarchy with the knowledge of the President.
It is striking that since Mawere reported this hijack of his property and the fraud in it, Gwaradzimba has not been arrested.
I learned that he is untouchable because of his direct links to the President.
In the course of the exchanges in FOSMM, I learned that Manikai in one of the chats with Mr. Fred Mutanda, a fellow member of FOSMM, had provided a very interesting narrative confirming the direct role of the President in the SMM reconstruction project.
I was astonished to hear that the allegations that the SMM reconstruction was triggered by an alleged political fallout between Mawere and President Mnangagwa.
As an active citizen, I chose to take the next step of using the courts to test the veracity of Manikai’s admissions.
I naively thought that the mainstream media would be persuaded to journey with me to test whether the duty imposed on the courts to determine whether President Mnangagwa has failed to fulfill his constitutional duties can be discharged in an independent and impartial manner.
My experiences since the launch of my court application especially with regard to the media as a vehicle to objectively inform, educate and entertain the public although not exhaustive confirm that tyranny thrives when illiteracy is pervasive on the burning questions of our time.
Governance becomes the victim and tyranny becomes celebrated by the very people who are expected to play a watchdog role in a constitutional democracy.”