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Legal Literacy

JUROL#2 – Mr. Goodman Musariri on the Rule of Law Idea and Ideal

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Mr. Goodman Musariri, a member of the Justice Under Rule of Law (JUROL) initiative provokes thought on the idea and ideal inherent in the construct called Rule of law.

What is the Rule of Law? This is a question that is omnipresent in the affairs of persons with property or who aspire to have a relationship with it. The concept of this idea only relevant in the affairs of mankind is that in order to best speak to the human spirit, a mechanism, process, institution, or norm that supports the equality of all persons before the law, secures a nonarbitrary form of government, and more generally prevents the arbitrary use of power is a sine qua non for building a caring, inclusive and prosperous ecosystem.

PLEASE READ THE VALUE ADDED BY MR. MUSARIRI TO THE RULE OF LAW CONSTRUCT AND AFTER READING, PLEASE SHARE COMMENTS:

The MAGNA CARTA And MAN’S QUEST FOR FREEDOM

[JUSTICE UNDER RULE OF LAW ( JUROL)]

What is the rule of law critical to you?

By: Goodman Tamuona Musariri✅🍀🌿🌾🇿🇼

Introduction
• Through the picturesque landscape of the meadows lining its banks stands a monument with an inscription that commemorates a 13th – century event. Here at Runnymede English King John (reigned 1199 – 1216) met with opposing barons, powerful landowners disgruntled by royal excesses.

• The barons demanded that the king appease their grievances by conceding certain rights. Under tremendous pressure, the king finally affixed his seal to a document that later became known as Magna Carta (The Great Charter).

• Why has this document been described as “the single most significant legal document in the history of the West”? The answer reveals much about man’s quest for freedom.

The Articles of the Barons

• King John was in trouble with the Roman Catholic Church. He defied Pope Innocent III by refusing to recognize Stephen Langton as Archbishop of Canterbury. As a result, the Church withdrew its support and, in effect excommunicated the King.

• King John, however, attempted a reconciliation. He agreed to hand over his kingdoms of England and Ireland.

• The Pope then returned these to John on the basis of the king’s profession of loyalty to the church and his payment of an annual tribute. King John was now the Pope’s vassal.

• Financial difficulties compounded the King’s problems. During his 17- year reign, King John levied extra taxes on the landowners 11 times.

• All the strife over the church and financial matters led to a widespread belief that the King was untrustworthy. John’s character evidently did little to allay such concerns.

• Finally, unrest boiled over when barons from the north of the country refused to pay further taxes.

• They marched on London and renounced their allegiance to the King.

• Much haggling between the parties ensued, with the King in his palace at Windsor and the barons camped to the east in the nearby town of Stains.

• Behind-the-scenes negotiations brought them face-to-face between the two towns, at Runnymede.

• Here on Monday, June 1215, John sealed a document listing 49 articles. It begins: “These are the articles that the barons seek and the King concedes”.

Freedom Under Law

• Mistrust of John’s intentions, however, surfaced quickly.

• Amid much anti-royal and anti-papal feeling, the king dispatched envoys to meet with the Pope in Rome.

• The Pontiff promptly issued papal bulls declaring the Runnymede agreement null and void.

• Back in England civil war quickly erupted. The next year, King John died suddenly, and his nine-year-old son, Henry, acceded to the throne.

• Young Henry’s supporters arranged for the Runnymede Agreement to be reissued.

• According to the booklet Magna Carta, this revised edition had been “hastily converted from an instrument for the suppression of tyranny into a manifesto by which men of moderate views might be rallied to his [the King’s] cause.”

• The agreement was reissued several more times during Henry’s reign.

• When his successor, Edward I, confirmed the Magna Carta once again on October 12, 1297, a copy was finally placed on the statute roll, a listing of documents of special public significance.

• The Charter curbed the monarch’s power. It stipulated that he, like all his subjects, was now subject to the rule of law.

• According to Winston Churchill, a renowned 20th-Century Historian and Prime Minister of England, Magna Carta provided “a system of checks and balances which would accord the monarchy its necessary strength, but would prevent its perversion by a tyrant or a fool. Noble sentiments, indeed!

• But what did this document mean to the average man? – At the time, very little.

• Magna Carta detailed only the rights of “free men” – actually, a somewhat exclusive group, who were then in the minority.

  • While in 1215 the word ‘freeman’ had a limited meaning by the seventeen century it signified almost everyone

• “Quite early in its history,” Magna Carta “became a symbol and a battle cry against oppression, each successive generation reading into it a protection of its own threatened liberties”.

• Reflecting this significance, each session of England’s Parliament opened with a reaffirmation of the Magna Carta.

• Lawyers in 17th- century England used articles from the Magna Carta as the basis for such privileges as TRIAL BY JURY, HABEAS CORPUS, EQUALITY BEFORE THE LAW, FREEDOM FROM ARBITRARY ARREST, AND PARLIAMENTARY CONTROL OF TAXATION.

• Thus in the eyes of British Statesman William Pitt, Magna Carta was part of the ‘Bible of the English Constitution

The Quest for Freedom Continues

• Historically, the constitutional significance of the Magna Carta has depended much less on what the charter said than on what it was thought to have said”, acknowledged Lord Bingham, who was Lord Chief Justice of England and Wales from 1966 to 2000.

• Nevertheless, the ideals of freedom associated with the Charter later spread throughout the English-speaking world.

• The Pilgrims, who left England in 1620 bound for America, took with them a copy of the Magna Carta.

• In 1775, when British colonies in America rebelled against taxation without representation, the assembly of what is now the state of Massachusetts declared that such taxes contravened the Magna Carta.

• Indeed, the official Massachusetts seal in use at that time depicted a man holding a sword in one hand and the Magna Carta in the other.

• When representatives of the fledgling nation met to draft a constitution for the United States of America, they upheld the principle of freedom under law.

• The U.S Bill of Rights, descends from this acceptance. Thus in 1957 and in recognition of the Magna Carta, the American Bar Association erected at Runnymede a monument bearing the inscription, “To Commemorate Magna Carta – Symbol of FREEDOM UNDER LAW.

• In 1948, American Stateswoman Eleanor Roosevelt helped to draft the United Nations Universal Declaration of Human Rights, hoping that it would become “the international Magna Carta of ALL men everywhere.

• Indeed, the history of the Magna Carta shows how profoundly human yearns for freedom.

•Despite noble aspirations, today basic human rights remain under threat in many countries.

• Human governments have repeatedly shown themselves unable to guarantee freedom for all

• Probably that is the reason why millions on earth have resorted to the QUEST OF EVEN HIGHER form of freedom under the law of a different government, God’s Kingdom which explains why national or International CONSTITUTIONS are and have to be dedicated to God Almighty.

• And the Christian Bible says something remarkable about God Almighty and as a Prophet myself (Prophet Bokolings), allow me to quote from 2 Corinthians 3:17:-

• “Where the spirit of Jehovah is, there is freedom” (2 Corinthians 3:17).

• All Citizens Sovereigns must therefore seek justice under the rule of law from God Almighty himself to find a fascinating and liberating FREEDOM from whom all constitutions of the universe are dedicated by both DIATHEKE COVENANTS (Between Man and Man) and SUNTHEKE COVENANTS ( between God Almighty and Man.

• Before we delve into the modern dynamics of JURISPRUDENCE which is achieved through the following:

(1) CONSTITUTIONALISM DEVELOPMENT

(2) CONSTITUTIONALITY AWARENESS

(3) CONSTITUTIONAL ORDER

(4) AWARENESS OF THE CONSTITUTION ITSELF AND ITS CONTENTS:

• It was important that I highlight the origin of the RULE OF LAW versus JUSTICE DELIVERY and as a consequence of the CAUSATION AND EFFECT relationship between them.

THE GREAT CHARTER

• |” Magna Carta (Latin for “The Great character”) began as “The Articles of the Barons”. King John affixed his seal to this 49-article document. During the next few days, the agreement expanded to 63 articles, and the King again sealed the document. The reissue 1217 accompanied a second, smaller charter that dealt with forest law. Henceforth, the articles assumed the description Magna Carta”.|

• |” The 63 articles fall into nine groups among which those that deal with the barons’ grievances, the reform of law and justice, and the freedom of the church. Article 39, the historical basis for English civil liberties, reads: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him or send others to do so, except by the lawful judgment of his equals or by the Law of the land.|

• At this point I have given a background of FREEDOM UNDER LAW,RULE OF LAW, EQUALITY BEFORE THE LAW, CONSTITUTIONAL LAW, AND JUSTICE UNDER RULE OF LAW ( JUROL) AS A CONSEQUENCE OF JURISPRUDENCE WHICH IS ACHIEVED THROUGH:

(1) CONSTITUTIONALISM DEVELOPMENT

(2) CONSTITUTIONALITY AWARENESS &

(3) CONSTITUTIONAL ORDER

  • From Latin “you should have the body”, a writ of habeas corpus is a legal document that orders inquiry into the lawfulness of a person’s detention in custody.
  • Magna Carta is the Latin Phrase for “The Great Character”

I thank you!

Goodman Tamuona Musariri✅🍀🌿🌾🇿🇼

+263 718425373

[email protected]

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Corporate Literacy

PART 2 – MR SHAYNE KUNDAI’S UNDERSTANDING OF THE SMM STORY IN A CONVERSATION WITH PROF TICHAONA MUPASIRI ON 28 JANUARY 2028

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As part of a project to provoke, ignite and inspire fact-bases active citizenship under the Justice Under Rule Of Law (JUROL) initiative, in this story is Mr Shayne Kundai’s understanding of the SMM story in a conversation with Prof Tichaona Mupasiri on 28 JANUARY 2028.

Mr. Chin’ono is a respected journalist and the exchange in Part 1 of this addition to the SMM narrative adds to the confusion that provoked Mr. Mugore to express openly his wish that Mr. Mawere write a memoir to set the record straight hence the involvement of Mr. Kundai. 

Mr. Chin’ono stated as true and fact that:

“Surrogates were people like Mutumwa Mawere who was his front until they fell out.

Today surrogates refers to people like Kuda Tagwirei who has been a front for State looting using his myriad of companies.”

Based on the above and since 1996, the year in which the video relied upon to assert that Mawere was MNANGAGWA’S FRONT, a respectable journalist whose duty is to inform, educate and entertain the public, clearly premised his conclusion that MAWERE was MNANGAGWA’s surrogate on the unconnected and untested utterances made by MNANGAGWA in a public platform.

Mr. Mpasiri said: “It is this kind of reckless and malicious trophy hunting type of gutter journalism that provoked me to confront Mr. Chin’ono and his response was chilling as set out below:

“TM: Thank you for the honest response and obviously when I watched the video, I could not make the link between Mutumwa Mawere and the looting. 

Perhaps you can share evidence supporting the allegation of surrogacy and the corruption therefore in, so that I can afford both president Mnangagwa and Mawere to give their own account of the precise nature of the alleged link between public power and private benefit.

Unfortunately, the video’s content does not establish the causal link which is vital in determining any dispute in an Independent and impartial manner.

HC: I didn’t say Mutumwa was corrupt.

I said that there were public funds that were doled out which amounted to looting.

HC: You are misinterpreting what I said.

The video has nothing to do with Mutumwa being corrupt, it was meant to illustrate how public funds were looted way before sanctions.

TM: Thank you for clarifying and I am intrigued by your response. 

You have asserted as true and fact that Mawere was Mnangagwa front and this aspect is not self-evident in the video, suggesting that evidence exists that the alleged fronting you are talking about, is supported by concrete evidence which is required in any bona fide process, seeking to hold people accountable for their conduct or misconduct. 

I would be grateful if you can identify in precise terms what Mawere front for Mnangagwa.”

The above was unfortunately the end of the chat leaving any reader to question the basis on which a person like Hopewell operates. 

The view that Mnangagwa uses surrogates to allegedly loot public resources is not unique to Hopewell but to many compelling anyone to probe this question deeper than hitherto. 

Mr. Chin’ono was interviewed by the SABC on the subject of the war against corruption in Zimbabawe and he proudly shared the interview on this link with Me. Mpasiri: 

Mr. Frederick Koomson, Director of the Justice Under Rule of Law (JUROL) – Investigative Journalism (IJ) initiative said: “I am shocked if this criminality clothed as craft excellence exists and operates through Hopewell, then I shudder to imagine what is left of this glorious profession commonly described as the 4th State.

In this case, Hopewell maliciously imported a video into a narrative that he wished to peddle that Mnanagwa uses surrogates to prosecute corruption.

I have had a look at this interview and the inescapable conclusion Hopewell’s activism clothed as journalism poses so grave a threat to the rule of law that if nothing is done to hold him to account for not only putting the entire profession into disrepute but for undermining the public confidence in the profession as a guardian of the practitioners’ independence and impartiality.”

Hopewell Chin’ono, Award Winning Journalist & Documentary: 

Mr. Mpasiri, BOAF’s Director of Corporate and Legal Literacy said: “I had a no idea that even after exposing his fraud, Hopewell was blind to what actually had transpired when he sought to unashamedly deny what he had asserted as true and fact that Mawere was in 1996, Mnangagwa’s surrogate, only to deny having said this by accusing me of misunderstanding him.” 

Prof Tichaona Mupasiri (Photo Credit: WhatsApp)

Mr. Kundai them approached Prof Mupasiri, who in a landmark case under Case Number CCZ 34/21 approached the apex court if Zimbabwe seeking President Mnangagwa to account for his state of knowledge and involvement in the facts and circumstances of the reconstruction of SMM using extrajudicial means.

Advocate Jack Matiza, a member of the Friends of SMM (FOSMM), JUROL and BOAF initiatives aimed at promoting, protecting, and upholding the rule of law said: “After watching Hopewell’s interview on SABC that Hopewell had encouraged Mr. Mpasiri to watch and share, i understood why the memoir challenge should be a call to action for anyone who had hope that people like Hopewell could be relied upon to shape the personality and character of an open, accountable, transparent and alternative governance system, his conduct which is inconsistent with s2 of the constitution confirms otherwise.”

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Legal Literacy

A Judge Occupies a Special Position in Society (BOAF LAW) – Mutumwa Mawere

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The duty of a judge is to determine disputes based on facts or evidence adduced in court by parties who voluntarily present themselves before what should be an independent and impartial forum.

In many countries, they have a jury system where peers will determine the outcome rather than allow a single person presiding over the matter to be the sole determinant of a dispute.

The plan that we started under BOAF is aimed at promoting active citizenship based on a shared understanding that is premised on literacy.

There are far too many people who believe that civics is about the rights of citizenship and zero obligations.

However, Section 2(2) of the current Constitution of Zimbabwe imposes obligations that are binding on every person including you and me to UPHOLD, DEFEND, RESPECT, AND OBEY the constitution as the SUPREME LAW.

As such, any LAW, PRACTICE, CUSTOM, AND CONDUCT that is inconsistent with the CONSTITUTION is invalid to the extent of its INCONSISTENCY.

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Legal Literacy

Is judicial capture reality in Zimbabwe under President Mnangagwa’s watch?

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Is judicial capture reality in Zimbabwe under President Mnangagwa’s watch a question that top jurists who are reported to have been in Zimbabwe on a fact-finding mission are seized with?

Below is an article that is informed by the conduct of Makarau JCC who presided over an application for leave of court to intervene in an application launched by Mr. Tichaona Mupasiri under Case Number 34/21 in December 2021.

In this story, it is true that makarau jcc boldly maintains that the rights and freedoms of a specified person evaporate, and the right to access the court vanishes. do you agree?

Below is an article that speaks to the response of the SADC LAWYERS ASSOCIATION to concerns that Zimbabwean judges are not independent and impartial.

Now turning to PART ONE of the constitutional questions that arise from Makarau JCC, a specification order was issued in relation to untested allegations of corruption creates a legal disability that has the effect on a person so specified to have unfettered access to courts of law.

In the above-mentioned matter, a crooked Minister of Justice in the name of Patrick Chinamasa invoked the Presidential Powers that are reserved to deal with national emergencies to deal with the affairs of a private company, SMM Holdings Private Limited (SMM), falling what a prominent Zimbabwean lawyer, Mr. Edwin Manikai describes as a major political fallout that caused Chinamasa to invent a nexus between all companies deemed to be under the control of SMM’s ultimate beneficial shareholder, Mr. Mutumwa Mawere.

Chinamasa promulgated a decree on a Friday or 3 September 2004 under the title: RECONSTRUCTION OF STATE-INDEBTED INSOLVENT COMPANIES regulations and in conflict with the DOCTRINE OF SEPARATION POWERS gave himself exclusive jurisdiction to hijack the control and management of all the targeted companies without the involvement of parliament and the judiciary.

Set out below is an extract of Chinamasa’s affidavit in support of an application to sanitize his extrajudicial order with a veneer of a court’s blessing.

This application was made after the hijack was executed:

Imagine if one was an independent and impartial Judge, would this absurdity occur inside a court?

The control and management of SMM were placed under Chinamasa’s appointee on 6 September 2004 even though the Administrator’s official appointment letter was dated 14 September 2004, he dismissed the board on 6 September 2004 before his appointment.

The question that arises is the audacity that informed Chinamasa to prosecute this hijack without any concern about the possible non-cooperation of the judiciary.

This drama happened under the watch of the late President Mugabe. It is worth highlighting that Chinamasa’s application for confirmation was not handled by the Attorney General but by a private law firm, DMH Attorneys, that is acting for President Mnangagwa in the Mupasiri constitution challenge.

It can be noted above that the Minister’s ex-parte application for confirmation did not provide for any Respondent as the hijack was never meant to be challenged and the decree and subsequent law were framed on the basis that the hijack would never be reversible. This was the precursor to the Nov 2017 coup in which the judiciary played a complicit role to the same people who authored the Reconstruction Act and still remain unaccountable.

The address of service in respect of this application was not a government address or the Attorney General’s address but that of DMH Attorneys. What does this say about state capture?

Notwithstanding, the application for confirmation was granted without any judicial resistance notwithstanding the significant constitutional questions that this precedent suggests.

The facts in relation to the ZHL matter referred to above go as follows:

  1. THZ Holdings Limited had a direct and substantial interest in the affairs of its wholly-owned subsidiary, Endurite Properties Private Limited (Endurite), and had a direct and indirect interest in ZHL of 46.55% making it the largest single shareholder of ZHL, a listed company on the Zimbabwe Stock Exchange (ZSE)

2. On August 24, 2004, Chinamasa declared both THZH subsidiaries to be specified in terms of s6 of the Preventions of Corruption Act solely to ensure that access to justice was denied before this was called for. This all happened before the reconstruction decree was promulgated.

3. Mr. Reggie Saruchera, Chinamasa’s ally was appointed as the investigator in respect of the two companies.

4. As described by Makarau in her judgment, on 28 January 2005, ZHL held an EGM at which shareholders were to approve or disapprove of a proposed rights issue in the company at a time when the control of the affairs of THZH’s two subsidiary companies was placed under the control of Mr. Saruchera who had no power, right or capacity to substitute the rights of the affected companies as shareholders. Ordinarily, a specification order is an asset preservation order and rarely has a company’s control and management be divested using public power under the guise of fighting against corruption.

Two resolutions one SPECIAL and ANOTHER SPECIAL were to be considered without the knowledge and consent of ZHL’s shareholders.

5. The constitutional question that arises is whether a company whose control and management had been divested by an act of state can concurrently be placed under reconstruction pursuant to the use of public power to achieve both conflicting objectives.

6. The effect of a specification order in relation to a juristic entity has not been sufficient to allow for any definitive conclusion to be drawn on whether it was part of an organized and orchestrated scheme to use this novel route to achieve what expropriation of property rights delivers in relation totalitarian regimes.

7. What is clear is that there was no judicial resistance to the abuse of state power in divesting THZH of the control of its subsidiary companies. The specification order issued against Endurite and UKI was anticipatory and predatory as the events that unfolded confirmed Makarau JCC’s enabling role in delivering the promise of using state power for ulterior banking on a compliant and compromised judiciary.

Only Endurite and UKI had the right to vote at the EGM yet specification was used to deny the shareholders the right to reject the resolutions.

8. THZH believing the rule of law was applicable in Zimbabwe approached the Court in Case Number HC 542/05 seeking an order setting aside as invalid, the resolutions both special and ordinary on the legitimate grounds that such resolution would be dead absent the abuse of public power sanctioned by Makarau JCC.

9. Makarau JCC knew that Gwaradzimba was a creature of statute and permitting his application to be joined in the proceedings constituted an abuse of court processes in that an organ of state would assume with judicial tolerance rights that were directly derived from the abuse of public power to infringe on the rights and freedoms of bona fide shareholders.

10. It is significant that Makarau JCC was alive to the fact that Chinamasa’s extrajudicial notice did not refer to ZHL specifically but was intentionally manipulated outside the regulations to apply to this listed company by her.

11. Makarau JCC made an astonishing finding: “I am of the view that the acceptance of the situation by both ZHL and the state-appointed hijacker is proper and accordingly accept that ZHL is under reconstruction order issued by the Minister.”

12. If anyone had any doubt about judicial capture, what Makarau JCC said below is decisive and instructive:

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