BATTLE OF IDEAS ON CIVICS – Is this title informed by literacy or illiteracy on the true nature of the Musengezi matter?

[10/6, 9:29 AM] Munyaradzi Kwirirai: Tichaona Mupasiri joins ED coup challenger to stop Zanu-PF congress

 DMB Midweek Special

5 October 2022

Tichaona Mupasiri joins ED coup challenger to stop Zanu-PF congress

POLITICSCRIMES & COURTSFEATURED

By Staff Reporter On Oct 5, 2022 24,60316 Comments

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President Emmerson Mnangagwa and Zanu PF member Sybeth Musengezi

A Zanu-PF member challenging President Emmerson Mnangagwa’s legitimacy has been joined by academic and Friends of Shabani, Mashava Mine Trust member Tichaona Mupasiri in the case he is seeking to stop the ruling party congress.

Mupasiri on Monday filed an application for a joinder in the case in which Musengezi is seeking to stop the party congress on the basis of Mnangagwa’s alleged lack of legitimacy.

In the application he filed in terms of section 2 (2) of the Constitution, which allows him to apply to intervene in a matter under case HC5687/21, Musengezi versus Mnangagwa, Mupasiri supports Musengezi’s claim that the November 19, 2017 Zanu-PF central committee meeting that elected Mnangagwa to be President of the party was convened illegally.

Mupasiri cited Musengezi, Zanu PF, Mnangagwa and party leaders Obert Mpofu and Patrick Chinamasa, former Vice-President Phelekezela Mphoko and former Local Government minister Ignatius Chombo and the Federation of Non-governmental Organisation Trust led by Goodson Nguni and Nguni as the first to ninth respondents.

This is not the first time Mupasiri is challenging Mnangagwa. In December, last year, he filed another application against the President and his lawyer Edwin Manikai alleging that the latter assisted Mnangagwa to assume the Zanu-PF party presidency in 2017.

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[10/6, 11:15 AM] Israel Mabhande: How is mupasiri an interested party, is he a member of ZANU PF?

[10/6, 11:17 AM] POL00012: You raise an important question and the headline is instructive. What do you think the author of the story or the editor wished to convey as a message from the reckless headline?

[10/6, 11:25 AM] Israel Mabhande: Difficult to fathom, but if indeed he has applied for a joinder on the side of sybeth then there doesn’t seem to be any mischief in the heading. One of the reliefs sought by Sybeth is to stop the ZANU PF congress until the legitimized case is determined. For sybeth he obviously has locus standi being a bonafide member of ZANU PF. That’s why I questioned mupasiri’s interest.

[10/6, 11:27 AM] POL00012: Do you understand that the supremacy of the constitution limits the title and jurisdiction of the court in tribal or affinity-centric disputes?

[10/6, 11:31 AM] Israel Mabhande: Ok. But I thought almost always the courts would ask for a person’s interests in such proceedings, especially as the case is not about the government but leadership of a party, which in terms of the law may be treated as a voluntary private organization.

[10/6, 11:49 AM] POL00012: You assert boldly in response to the question on the mischief inherent in the proposition that an application for leave to intervene is based on affinity rather than on objective and testable factors related to the cause, that: “Difficult to fathom, but if indeed he has applied for a joinder on the side of Sybeth then there doesn’t seem to be any mischief in the heading,” when the test for any independent and impartial tribunal has to be measured in terms of the limitation imposed in s2(1) of the Constitution as follows:

“This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.”

It is clear from the above, that the practice of self-help based on some mentality of entitlement and stockholder role in relation to the promotion, protection and upholding duties inherent in civics, that would compel a person to assume and assert superior rights in relation to any step forward including ascendancy falls within the ambit to the above section.

In addition, when someone knows that the only organ that can bridge one’s personal ambition is through an election, and then one intentionally and knowingly, creates a new test that then is determined by an organ of the party lacking title and jurisdiction to make a conduct lawful, then the enterprise of stepping to the shoes of an elected Mugabe falls within the ambit of the impugned conduct in terms of the limitation prescribed above.

Now turning to the locus of the person who wishes to test the validity or legality of any conduct that falls outside the prescription even of the ZANU-PF constitution, s2(2) of the Constitution is prescriptive and decisive as follows:

“The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative and judicial institutions and agencies of government at every level, and must be fulfilled by them.”

It is not in dispute that the ZANU-PF constitution is subordinate to the national constitution. Musengezi approached the court on the basis of his relationship with the party.

Mupasiri’s application is premised on the basis that he is the EVERY PERSON referred to in s2(2) of the Constitution. It is clear that citizenship is not limited only to rights like the right to vote but the obligation to make public office bearers or beneficiaries of public power or elected servants to account for the use of public power.

In this matter, the Presiding Judge in the Nguni application for leave to appeal has already stated that even a trust has locus to participate including Nguni to allow anyone to misrepresent that Mupasiri has no mind of his own and that his obligation to uphold, defend, respect and obey the constitution of the country as the supreme law should be subordinated to the limitations imposed by private club’s constitution let alone by personal interests.

It is the constitution that compels persons to be vigilant lest they trust their servants to conduct themselves in a transparent, open and accountable manner.