Will President Mnangagwa be found wanting for breach of office in relation to the Mupasiri challenge?

In this landmark and watershed constitutional challenge launched by Mr. Tichaona Mupasiri on 17 December 2021, the Constitutional Court is being asked for the first time in the post-colonial history of Zimbabwe to determine whether President Mnangagwa has failed to uphold and protect the Constitution as required by his oath of office.

The late President Mugabe resigned against a spirited attempt to impeach him through the parliamentary weapon and now s167(2)(d) as read with s167(3) is being used for the first time to determine if the President has failed to fulfill a constitutional duty in relation to the allegations made by Mr. Edwin Manikai, that the President was the brains behind the idea and prosecution of the reconstruction affair against SMM Holdings Private Limited (SMM) using draconian measures.

Will the Constitutional Court that is scheduled to hear this matter on 23 March 2022 find the President to be in breach of his oath when he refused and neglected to answer the simple question of whether he was involved in the reconstruction affair and, if so, does he owe a duty to disclose to the Court his state of knowledge and involvement as part of his constitutional duties.

A comparative analysis of how breach of office is treated in other jurisdictions:

Is violating an oath of office a crime?

“The bill would authorize the county to maintain a record, subject to disclosure under the California Public Records Act, of each person so required to file a new oath of office, indicating whether or not the person has complied. Violating an oath or affirmation is a crime.“

What is the penalty for violating the oath of office?

“The fourth federal law, 18 U.S.C. 1918 provides penalties for violation of oath office described in 5 U.S.C. 7311 which include: (1) removal from office and; (2) confinement or a fine.”

Is an oath of office legally binding?

“The Constitution sets out the Presidential Oath in full, and expressly provides that Congress “shall be bound by Oath or Affirmation to support this constitution.” State and local governments adopted oaths modeled after the federal oath, and the taking of an oath has become a requisite for holding nearly any public ..”

Is it illegal to break the oath of office?

“Thus, according to Executive Order 10450 (and therefore 5 U.S. 7311) any act taken by government officials who have taken the oath of office prescribed by 5 U.S.C. 3331which alters the form of government other by amendment, is a criminal violation of the 5 U.S.C. 7311.”

What happens when the Constitution is violated?

“When the proper court determines that a legislative act or law conflicts with the constitution, it finds that law unconstitutional and declares it void in whole or in part.”

What is considered a violation of the law?

“A violation of law is any act (or, less commonly, failure to act) that fails to abide by existing law. Violations generally include both crimes and civil wrongs. Some acts, such as fraud, can violate both civil and criminal laws.”

What is the difference between perjury and lying under oath?

“Perjury is more than just lying on official documents (such as driver’s license applications). It happens when you provide false testimony in or out of court and lie in affidavits, and any other official written declaration under oath.”

How do you prove a false affidavit?

“All three criteria must be proved for conviction. The intention is most important. False evidence is said to be given intentionally, if, the person making the statement is aware or has knowledge that it is false and has deliberately used such evidence in a judicial proceeding with the intention of deceiving the court.”

What is punishment for giving a false affidavit?

“Situation 2 – If a person voluntarily files a false affidavit, then he/ she can be punished under sections 191,193,195, and 199 of the Indian Penal Code for giving false evidence. Punishment for filing a false affidavit is punishable by imprisonment for a term ranging from 3 to 7 years.”

What are the legal consequences of false and untruthful facts in an affidavit?

“The crime of perjury is committed by any person who shall knowingly make untruthful statements or make an affidavit, upon any material matter and required by law. It is punishable by imprisonment of up to 2 years and four months.”

What are the three forms of false testimony?

“The Revised Penal Code divides false testimony into three forms: first, false testimony in a criminal case (arts. 180 and 181); second, false testimony in a civil case (art. 182); and third, false testimony in other cases.”

What are the commonly encountered issues in a perjury prosecution?

“The issues commonly encountered in any perjury prosecution are proving the validity of the oath, the defendant’s criminal intent, or the materiality of the false statement, and any requirement of corroborative evidence.”