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Legal Literacy

JUROL#3 – Dangers of an Imperial President – Musariri with Mawere on the Rule of Law Conundrum

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This is the third installment of the continuing conversations between Mr. Mawere and Mr. Goodman Musariri aimed at building a bank of hope on the foundational prerequisites or building blocks of a nation-state that speaks to the indomitable human spirit.

The architects of the 2013 Constitution understood the importance of having a faithful President as the head of the executive branch of government and head of state.

The framers of this constitution foresaw that a faithless President could destroy their 33-year experiment in building an open, transparent and accountable system of government.

The first country to build on the basis of a constitution was the United States of America and one of the founding fathers of this noble project, George Mason, warned at the Constitutional Convention, held in Philadelphia in 1787, “if we do not provide against corruption, our government will soon be at an end.”

Mason evoked a well-known historical truth: when corrupt motives take root, they drive an endless thirst for power and contempt for checks and balances.

It is then only the smallest of steps toward acts of oppression and assaults on free and fair elections.

It cannot be disputed that: “A President faithful only to himself–who will sell out democracy and national security for his own personal advantage–is a danger to every Zimbabwean. Indeed, he threatens Zimbabwe itself,” said Mr. Tichaona Mupasiri, Director of Public Policy at JUROL.

Mr. Mawere poignantly remarked: “Impeachment is the Constitution’s final answer to a President who mistakes himself for a monarch.”

Mr. Brian Manyati, a member of the C2C Initiative said: “Aware that power corrupts, our authors of the 2013 Constitution built other guardrails against that error.

The Constitution thus separates governmental powers, imposes an oath of faithful execution, prohibits profiting from office, and guarantees accountability through regular elections.”

Mr. Musariri said: “I know the framers of the Constitution were not naive. They knew, and feared, that someday a corrupt executive might claim he could do anything he wanted as President as was the case in the 33 years of post-colonial experiences.

Determined to protect our democracy, the authors built a safety valve into the Constitution:

A President can be removed from office if Parliament approves articles of impeachment charging him with “Treason, Bribery, or other high Crimes and Misdemeanors,” and if two-thirds of the Senate votes to find the President guilty of such misconduct after a trial.

It is for this reason that the significance of the s167(2)(d) as read with s167(3) of the Constitution has yet to be understood.

The Mupasiri challenge that he has so far prosecuted is a self-actor is a landmark and a pathfinder that no crowd is required to hold the most powerful citizen of Zimbabwe to account for what he knows and his conduct before the Constitutional Court.

This weapon ensures that no one is above the law but subject to it was exclusively given to the Constitutional Court.

Concerns have been expressed about the independence and impartiality of this apex court to discharge the obligation that is vested in it to determine if the President has fulfilled his oath of office.

It is trite that the President holds the ultimate public trust for he is vested with powers so great that they frightened any ordinary citizen.

We expect the President in exchange for the trust bestowed upon him by the people, he swears an oath to faithfully execute the laws that hold those powers in check.

This oath is no formality.

“The power of impeachment is not one expected in any government to be in constant or frequent exercise,” yet in terms of s2(2) of the Constitution, this power is vested in all citizens.

When faced with credible evidence of extraordinary wrongdoing, however, it is incumbent on us the citizens to investigate and determine whether impeachment is warranted.

It is the apex Court that is enjoined to inquire “into whether sufficient grounds exist for it to exercise its Constitutional power to conclude whether the President’s conduct constitutes a breach of his oath.”

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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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