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Should Patel JCC not recuse himself in the Mupasiri constitutional matter?

Peter Smith



A question has arisen as to whether it would be in the interests of justice and the rule of law for Patel JCC to recuse himself in any matter related to the Reconstruction Act, a law that he authored and gave life to following his unusual use of judicial power to declare Mupasiri as contemptuous in judicial proceedings in which he is personally implicated.

Legal scholars who have looked at the facts and circumstances of the decision by Patel JCC to direct that Mupasiri should apologize for openly in judicial proceedings pointing a finger at the conduct of the Constitutional Court judges who in his opinion are implication in the dispute regarding the constitutional validity of the reconstruction measures taken against SMM Holdings Private Limited (SMM), are shocked that Learned Judge who was the Acting Attorney General at the time when the reconstruction decree was promulgated had the audacity to preside over a dispute in which he was the author the draconian measures that Manikai has admitted were triggered by a political fight between President Mnangagwa and Mr. Mawere.

The timeline of this matter places Patel JCC at the scene of crime. It is not in dispute that Manikai is not a state-actor and as such would not have been lawfully involved in the birth of this repugnant decree whose effect was to divest shareholders and directors of targeted companies for ulterior succession motives of their control and management.

It would be unthinkable that Patel JCC, as the then AG, was not the driving force behind the grotesque abuse of public power premised on values that directly offend rule of law principles.

According to Manikai, the fight back against Mawere was purely based on party-related matters concerned with the filling of the vacancy of Vice President created by the death of Vice President Muzenda who died in 2003 but the party was yet to elect his successor.

Two principal contesting parties on the ZANU wing of the ruling party, ZANU-PF, were Mujuru and Mnangagwa.

It was in relation to this contest in the party that Manikai was referring to when boldly as follows:

“The news is from 2004/5 when WE had a major political FALLOUT and HE went POLITICAL, and then we had to fight BACK and HE had to RUN.

In short, he went with MUJURU at the time against ED (PRESIDENT MNANGAGWA) and HE (LATE PRESIDENT MUGABE) then took ED’s side against MAWERE and investigated SMM and found the rot – he (MAWERE) ran away until today.”

From the above, it is clear that in terms of the constitution of Zimbabwe, party affairs fall within jurisdiction of the party.

“Manikai made the point that the late President Mugabe caused an investigation to be done in relation to the affairs of SMM, a private company.

However, Manikai as a lawyer knew and ought to have known that even the maestro, the late President, had no title or jurisdiction to cause an investigation to be conducted into the affairs of SMM.

In addition, Manikai misrepresented the facts by suggesting that the late Mugabe was supportive of Mnangagwa’s ascendancy to the position of VP when the facts confirm otherwise.

Mujuru became the VP of the party and government for 10 years. This alone suggests that the Mnangagwa ascendancy project did not start with the weaponization of the army and the Central Committee to unseat Mugabe but started with the SMM putsch involving the use of public power to divest of rights.

Mujuru was also unseated in the same way and the constitution of ZANU-PF had to be amended to exclude Mujuru from establishing her independent political support base.

The November 2017 coup when properly construed was part of an orchestrated and scandalous scheme and the inherent conduct or practice falls within the conduct that is inconsistent with the doctrine of the supremacy of the constitution.

The mere fact that Patel JCC would audaciously seek to assert the integrity of a court that is patently compromised and impotent, confirms that Zimbabwe’s justice system is systemically broken,” said a member of the JUROL initiative.

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