Will the Judge President, JUDGE DUBE, deliver the s2 of the Constitution’s promise in the Musengezi matter?

In a landmark decision by the Constitutional Court of Zimbabwe (CCZ), the full bench of the court unanimously decided to grant the request by Mr Mawere to postpone his application under Case Number CCZ27/22 that he launched in April 2022 seeking the apex court to exercise its exclusive jurisdiction to determine if President Mnangagea breached his oath of office in relation to two questions as set out below.

The first question the CCZ was asked to determine is whether the President’s conduct in relation to the Mupasiri s167 application under Case Number 34/21 seeking to determine whether the alleged conduct of President Mnangagwa in response to damning and chilling allegations by his lawyer and confidant, Mr. Edwin Manikai, that he was the author of what Professor Johnathan Moyo described as a BARBARIC AND SATANIC piece of legislation that was used for ulterior and personal interest by President Mnangagwa in 2004 following an alleged political fallout with Mr Mawere in relation to the filling of the Vice President vacancy created by the death of the late Simon Muzenda in 2003, was consistent with the constitution of Zimbabwe

Section 2(1) of the Constitution of Zimbabwe provides that the construction is the supreme law of the constitution and any law, conduct, practice and custom that is inconsistent with it is invalid.

Thie constitution in terms of s2(2), imposes obligations to uphold, defend, respect and obey it on every persons including juristic entities and ensure that the rule of law is promoted, protected and upheld.

Pursuant to the prescription of s2 as a founding value, the Court was asked to determine whether President Mnangagwa’s conduct in prosecuting his opposition to the Mupasiri challenge wherein he was simply requested to respond to the Manikai allegations regarding his knowledge and involvement in the birth and prosecution of the Reconstruction of State-Indebted Insolvent Companies Act (Reconstruction Act), a law whose effect is to permit the government through its Minister of Justice to issue an order that divests and deprives shareholders of their rights and freedoms in relation to a company and more specifically permits the control and management of a private company under an extrajudicially appointed Administrator.

As background, Manikai’s allegations were limited to the conduct and involvement of President Mnangagwa in relation to the 2004 ZANU-PF congress in which his main rival was Mujuru to succeed Muzenda as party and state Vice President.

Accordung to Manikai, President Mnangagwa was angry that Mawere had taken the side of Mujuru in the succession battle and in revenge a fight back plan was hatched involving Manikai as a participant to use public power to reduce Mawere to nothing.

This involved inventing facts to justify the divestment using state power.

Such facts included creating an impression that Mawere had committed fraud in relation to a cession court order granted in South Africa on 6 May 2004 in favour of Petter Trading Pty Limited (Petter), against SMM Holdings Pty Limited (SMM) allowing Petter in response to the RBZ actions to stop SMM from using its export proceeds to pay Pettet as its principal foreign creditor what was due and payable in respect of bona fide goods and services sold to SMM in the ordinary course of business, to collect from SMM’s agent, Southern Asbestos Sales Pry Limited’s (SAS), a company registered in South Africa.

It was highlighted in the papers that SMM, Petter and SAS were companies that were ultimately controlled by Mawere.

In order to alienate Mawere from SMM, a company registered and operating in terms of the laws of Zimbabwe, a fraudulent scheme was hatched that was driven by Mnangagwa to use the cession court order as the weapon of attacking Mawere.

It was alleged that the cession court order was fraudulent and was not authorized by the RBZ and its effect was to unlawfully allow Petter to be paid by SAS what SAS was obliged by Zimbabwe’s exchange control to pay to SMM.

It was also alleged that Mawere as the controlling shareholder had caused SMM to unlawfully consent to the granting of the cession.

Following the RBZ’s failure to coerce the board of SMM to reoudiate the cession affair and proceed to rescind the court order, a decision was made to cause an application for the extradition of Mawere to help the Zimbabwean authorities to investigate the cession affair whose facts and circumstances occurred outside the borders of Zimbabwe.

The extradition application was dismissed in RSA and this apparently outraged Mnangagwa who then apparently instructed Chinamasa to use the laws of Zimbabwe to strip Mawere of any relationship he had with Zimbabwean companies.

After the dismissal of the extradition application on 30 June 2004, Chinamasa on 9 July 2004 specified Mawere, a South African citizen and a non-resident of Zimbabwe, in terms of the Prevention of Corruption alleging that Mawere had violated Zimbabwean exchange controls notwithstanding the fact that exchange controls only apply to residents of Zimbabwe.

On 13 August 2004, Chinamasa appointed Mr Samson Mangoma, Assistant Commissioner of ZRP as Investigator of Mawere, a person who fell outside the jurisdiction of Zimbabwe.

This was followed by the specification of SMM and related companies on 26 August 2004.

Mr. Reggie Saruchera was appointed as the Investigator of the companies.

After this was done and during the course of the weaponization of the Prevention of Corruption Act against Mawere, there was no mention of the existence of SMM’s alleged indebtedness to the state

Through a decree that provided the regulatory framework using the state of emergency powers, Chinamasa for the first time alleged that this draconian legislation was justified because the effect of the cession was to deny SMM of its export proceeds and this compelled SMM to use Productive Sector loans which loans were state-guaranteed and as such, SMM was arbitrarily and capriciously determined by Mnangagwa to get state-indebted.

Because this was politically motivated, Manikai became the sole and chief prosecutor of the scheme.

Manikai’s allegations related to a period in which the late Mugabe was presumed to be in charge and as such he felt that Mnangagwa’s conduct would not fall under the jurisdiction of the CCZ and the 2013 Constitution.

Ths genius of Mupasiri was that in his founding papers he zeroed in on s2 of the constitution which makes any law subordinate to the constitution.

Although Mnangagwa could claim legitimately, which he did, that the reconstruction of SMM happened prior to November 2004, his involvement in relation to the application and enforcement of the Reconstruction Act in relation to the affairs of Air Zimbabwe and Hwange Colliery Company Limited (Hwange) fell squarely within the ambit of s167 of the Constitution.

Against the above background, Mupasiri said: “I knew that Manikai is a devious and crooked lawyer. At the time I lainchef my application, I knew that the ascendancy of Mnangagwa given Manikai’s utterances was part of an orchestrated plan involving an organized group.

Until the Manikai expose of 21 March 2021, I had no idea that the ascendancy of November 2017 was not an isolated event but was part of a well organized corrupt scheme in which Manikai played a key role not as a legal advisor but as a practitioner with no fear of being exposed and excommunicated from the legal practice frarenity.

It was clear to me that Manikai could easily deny in judicial proceedings that he never said what he said to Fred Mutanda in relation to the political fallout and its consequences.

Already Fred Mutanda had already denied that the WhatsApp messages with Manikai did not exist and had threatened me from using what he termed as hearsay evidence in court proceedings.

Faced wuth this situation, I chose to put it to both Manikai and President Mnangagwa vias letters dated 8 and 9 November 2021, respectively.

I had thought that President Mnangagwa to protect his impugned integrity would be quick to distance himself from Manikai.

Surprisingly, they both refused and failed to respond to the letters.

In the premises, I knew that s167 existed for the sole purpose of holding the President and Parliament accountable for their conduct as prescribed in s2 and as such citing Manikai would be a ground for the CCZ to escape its obligations.

After approaching eminent constitutional lawyers like Uriri, Madhuku etc, it was clear to me that if I did not step up to the plate, the s167:was like an ornament in the constitution as the history of post-independent Zimbabwe has no record of a President being held to account for his conduct.

However the Chamisa ascendancy dispute had given me courage to use the court given that the issues inherent in both dispute were similar.

I then took the gamble of citing Manikai as the Second Respondent, albeit without asking for any relief from him, in the hope that the President would use an independent lawyer to prosecute his opposition and not use an implicated lawyer who had already implicated him.

My pedestrian thinking was that no President would constructively associate himself with a corrupt and highly compromised attorney who had recklessly linked the President with conduct that is inimical to the rule of law.

After issuing the application, I personally attended to serving the application on Manikai.

With respect to the President, I instructed the Sheriff to attend to the task.

I knew that service had only be effected on Manikai and not the President.

I knew that the agency of DMH in a dispute in which the role of the firm in the subject matter of the dispute would offend the promise entrenched in s2 of the Constitution.

The constitution imposes a duty of care to every person and that included DMH actors.

At issue is whether a lawyer can act in a matter in which he is implicated.

I naively thought that President Mnangagwa, a lawyer and an oath-taking public office bearer, understood that he lacked title and jurisdiction to get involved in engaging external lawyers in matters related to his conduct as President but was shocked that he had the audacity to act in a manner that was ulttra vires the constitution by using the agency of DMH.

I did what I could to challenge the authority relied upon by the President to oppose my application.

The irony is that on 24 December 2021, I was served with an affidavit deposed to by President Mnangagwa when in truth and fact, he had not been served with the papers.

After raising my concerns with DMH about the firm’s agency in the matter, I was shocked to receive a matter from the CCZ on 14 January 2022 directing that the matter had been set down for hearing on 9 March 2022 with directions on what was to take place.

This raised an alarm bell to me and I had no choice but to approach the court to determine whether the matter could be ripe for heariinf without proof of authority and of service to all parties.

What followed was bizzare and exposed the partiality of the court.

The intervention of Mr Mawere in my application was strategic in that it boosted the allegation that the CCZ could be compromised.

However, s2 gives no person the jurisdiction to be exempted from obligations to protect to he constitution as the supreme law.

The court by imposing a court against me and Mr Mawere in relation to a dispute that seems to protect the supremacy raised serious legal and constitutional questions regarding the independence and impartiality of the apex court.”

It is clear from the above that the relationship between the President and Manikai in relation to all matters including the reconstruction of SMM, the handling of Mujuru and the November transfer of power to the President of interest.

It is important to determine whether the decision by the President to use the agency if a conflicted law firm is consistent with the constitution.

Astonishingly in a s167 attack the President under oath has already boldly stated that he owes no duty to the constitution as the supreme law but to what he terns the exactant law being the repugnant Reconstruction Act.

He has asserted that the Reconstruction Act has been determined by the CCZ as constitutionally valid when no facts exist to support this representation and as such lying under oath is a crime of perjury.

Any independent and impartial court has no jurisdiction to ignore this dispute and would ordinarily have been compelled to determine factually whether the CCZ had already determined the constitutional validity of this Act and if so, then the court would be functus officio.

The President in response to Mawere’s application has denied being involved in the appointment of DMH to act for him yet he presented no facts as to how and when the AG appointed DMH when he also was not served with the papers.

The President has presented a false narrative that DMH was appointment by the AG because the firn is the subject matter expert but the evidence placed before the CCZ show that it was DMH after the fact that informed the AG’s office of the firm’s involvement in the matter.

If the President cannot bring the court into his confidence on a simple matter involving disclosure regarding his knowledge regarding his involvement in the appointment of DMH to act in the matter, how can any rational person trust him on any matter?

The second issue that Mawere has raised concerns the falsehood that President Mnangagwa presented to court regarding Makarau JCC’s judgment in relation to an application to review and set aside a reconstruction order that was granted on an ex parte basis by Kamocha J confirming the reconstruction order issued in relation to SMN by Chinamasa wherein he stated that the judgment was granted on merits when in truth and fact Makarau JCC dismissed the application capriciously and in a manner inconsistent with the constitution.

In order to support his contention that the Reconstruction Act was constitutionally valid, he had to lie to court that Makarau JCC had acted as prescribed in the constitution by determining a matter in which the judge herself stated that she had no duty to consider the facts and the law.

It is significant that the apex court’s panel includes Makarau JCC and other judges who were involved in determining disputes that are causally linked with the application of this draconian law.

It is also worth highlighting that DMH was the exclusive provider of legal services in relation to the prosecution of the reconstruction act in relation to the affairs of SMM.

Mnangagwa has thrown the Malaba led apex court under the bus but alleging that the court had already pronounced its opinion on the constitutionality of the act when Mawere is asking the same court to determine in terms of s2 whether this same law and conduct of the President are consistent with the constitution.

One would have expected the President to know and act better especially having regard to the fact that the constitution was born in 2013 whereas the Reconstruction Act was born in 2004, that lying under oath and implicating the court on the basis of false information is a crime of fraud and constitutes conduct that makes him unfit to be President.

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