A New Twist on the “Mupasiri challenge in relation to President Mnangagwa’s alleged failure to fulfil a constitutional duty,” Mr. Frederick Kyle

Mr Frederick Kyle, a member of the 10,000 Points of Light (POL), stated that: “The Mupasiri challenge in relation to President Mnangagwa’s alleged failure to fulfil a constitutional duty,” is taking a very interesting angle that I never predicted.

IHe also said: “When it was brought to my attention that Mupasiri, a lay person, who was inspired by my voluntary donation of my time to help build and shape the character of the Africa I want to see although I am now a resident of Finland. I thought he was crazy but that was in November 2021.

Since 2021, he has proved me wrong and this time he has sold me over when he used the knowledge gained in the Friends of SMM (FOSMM) that we belong to launch a court application in which President Mnangagwa and his lawyer, Mr. Manikai, were cited as the First and Second Respondent, respectively.

The President opposed the application and used DMH Attorneys as his legal advisor notwithstanding the limitations imposed by the Constitution that as President, he had no power, capacity and right to procure legal services on matters in which he is in court in his official capacity.

In relation to the Mupasiri application, he and Manikai was represented by DMH.

Mupasiri in a genius stroke decided after being rebuffed by DMH when he wrote a letter to the firm on 27 December requesting information as to who had engaged the firm on a matter that DMH was directly implicated, to launch an application seeking the court yo determine if his application was in truth and fact opposed by the President without the knowledge and involvement of the Attorney General.

This application was issued on 25 January 2022 after a Presiding Judge through the Registrar of the Court had directed that Mupasiri should file his heads by 26 January 2022 for a hearing that had already been set down before the CCZ bench.

This application was pregnant with a grenade and this grenade is about to explode.

The issue that the Court was asked by Mupasiri is whether the AG was the one who outsorced the legal work to DMH in relation to the prosecution of the opposition.

Set out below are some of the comments Mr. Kyle in a legal literacy group that is powered by BOAF:

“[4/24, 7:43 PM] Rikki: What is the point of raising these issues if the Courts are captured? What is the point of taking part in the judiciary process if you know the Courts are captured and the game is rigged?
[4/24, 7:58 PM] Rikki: This does not preclude or excuse the Respondents from dealing with the issue of authority. On the contrary it says it must be dealt with in their heads of argument.

The court felt that the “interlocutory applications” were more points in limine than stand alone applications and can be dealthwith in argument.

The truth be told whether or not authority existed is nothing more then legal argument. The law is clear on this issue and the Respondents papers lacked any averments or supporting documentation to overcome or even try and deal with the prescribed provisions of the constitutional. So it can be implied from the Respondents papers that no such authority existed.

In the present application, the President makes an averment relating to the authority issue but attaches no proof of appointment or delegation of authority.
[4/24, 8:14 PM] Rikki: Is your application not based on the lack of authority in the first application? The lack of authority being a breach of his Constitutional duty?
[4/24, 8:15 PM] Rikki: If so, you can highlight this in replying affidavit as there is no need for an interlocutory.
[4/24, 8:15 PM] Rikki: So in the reply it will be a point in limine that this opposition is not authorized
[4/24, 8:17 PM] Rikki: There is now a pattern of abuse on the issue of authority.
[4/24, 9:04 PM] Rikki: I am not basing my advice on either the directives of the judge nor do I trust the judges. My advice and guidance is based on the merits of the application, its purpose and intended outcome.
[4/24, 9:05 PM] Rikki: When was the authority resolved?
[4/24, 9:06 PM] Rikki: No I don’t agree.
[4/24, 9:09 PM] Rikki: It might not be enough from the rules of Court perspective. But enough from the President’s obligation side of he produces a document that evidences the existence of authority in advance. If the lawyers don’t present the evidence correctly to the Court that is not his fault.
[4/24, 9:10 PM] Rikki: So then that issue must still be fully ventilated and argued. This is exactly what you are doing in your application.
[4/24, 9:16 PM] Rikki: Once the Court establishes that there was no retrospective authority, the question is whether or not the President acted willingly knowing that he lacked the authority.

This issue is also not dealt with in the opposing papers nor is there an affidavit from the attorneys saying they advised him incorrectly. They hang their hat on the fact that they alleged there was authority. If the Court finds there was not it then falls that the President should be found to be in breach of his Constitutional duties.
[4/24, 9:18 PM] Rikki: The Court must also determine whether or not the AG can lawfully delegate it’s duty, and if so, if they can appoint a private law firm. If so, the court must determine whether or not there was such an appointment. Again no evidence of appointment is attached to the initial application (then one you complaining off) nor is there any proof offered in the present application.
[4/24, 9:19 PM] Rikki: In the absence of it being attached to the affidavits or an affidavit filed by the AG there is nothing before the Court.
[4/24, 9:27 PM] Rikki: I don’t think you fully appreciate the concession of the Makarau when she says none of the previous matters dealtwith the merits of the constitutionality or not of the Reconstruction Act.

You need to study and understand the rules of the game if you want to be successful at it.”