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Musengezi v Nguni on rule of law as per the Constitution

Caroline Du Plessis



What started as a complaint by Sybeth Musengezi about the legality of the ascendancy of President Mnangagwa when the constitution of ZANU-PF specifically precluded an appointed Vice President, albeit fired from succeeding Mugabe, has now descended into some beauty content with Nguni succeeding in being joined into the proceedings solely to assert that Musengezi is not a member of ZANU-PF and as such should never be given court audience to challenge the ascendancy.

The reaction of Musengezi to this development is instructive: https://twitter.com/NewsDayZimbabwe/status/1576119395847323648?t=o5dX0whQdwSwr7iE6hKe4g&s=19

The fact that Musengezi appealed the decision to grant the application for leave to intervene means that he was aggrieved by this outcome.

The question is why would any person protest the inclusion of another actor in the chain unless a fundamental problem exists as to the authenticity test.

What if Nguni believes that Musengezi is a pawn of powerful drivers of an agenda to unseat his loved President?

What if Musengezi believes strongly that his compmaint will be distorted and diverted from the court exercising its inherent jurisdiction to determine based on facts and the law whether the ascendancy met the legality test.

The issues of right, power, authority and legal relationship between both Musengezi and Nguni to assert a complaint using the court as well as the court’s jurisdiction to deal with what would appear at face value to be an internal and private matter has already divided the party into those who wish this matter should be buried and swept under the carpet and those who believe that a precedent has been created that may repeat itself to condone the conduct that says the end must always justify the means when all lawful channels are non-existent.

A view exists that at the material time, there were only two elephants in the ZANU-PF matrix after the dramatic ejection of Mujuru, the last elected Vice President before the pre-coup amendment of the party constitution, that is the late Mugabe who had no intention to exit and the dismissed Mnangagwa, who had long prepared for the succession yet the ZANU-PF that he and Chinamasa helped craft did not permit him to resurrect at the helm.

The facts are not in dispute and whether Nguni or Musengezi are in the suit or not, the test that needs to met is whether objectively based on the facts, any independent and impartial tribunal would come to a different conclusion that the Central Committee that was used as a bridge had the jurisdictional authority to decide on who should have stepped into the shoes of Mugabe.

It is clear that when Musengezi launched the application, he had no idea that a person like Nguni would seek to interpose himself and a juristic entity he controls into this plain vanilla dispute.

Both Nguni and Musengezi are not alleging that they suffered any personal prejudice in the ascendancy affair but Musengezi is alleging that the constitution of the party was the victim.

When one looks at the joinder judgment, it is clear that the Presiding Judge was compelled to take notice of the legal and constitutional questions that arise from this conveyancing of power in the party.

What then does the Constitution say about the rule of law in relation to this vexing and divisive transfer of power?

The supremacy of the national constitution is prescriptive in that if no one is above the law, and everyone under the authority of the constitution is obligated equally to obey the law, it follows that any conduct or practice that is inconsistent with the doctrine of equality especially in so far as the opaque selection of Mnangagwa as the sole heir to Mugabe by a cabal of members prejudiced other members from offering themselves in a democratic process for service as Presidents, then the succession fails the test.

If the glove doesn’t fit, then the court has no discretion but to determine the transfer as a nullity and invalid ab initio.

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