The Tshabangu-led recall affair involving the weaponization of CCC in terms of s. 129(1)(k) of the Constitution that provides for bona fide political parties to recall MPs and other elected office bearers that used the political parties as vehicles to get elected with constitutionally valid and lawful authority and power to recall the users of the vehicle, in Zimbabwe has raised serious concerns about the democratic process and the rule of law as the opposition party, CCC (Citizens Coalition for Change), faces what appears to be a deliberate attempt by ZANU-PF to undermine its influence
Mr. Divine Mafa, an American citizen of Zimbabwean descent, who has been following the recall affair closely as a member of the JUSTICE UNDER RULE OF LAW’s, JUROL, JUROL LEADERSHIP INSTITUTE’S, JLI – AI ACCELERATOR PILOT PROJECT, a collaboration between natural members of JUROL and artificial intelligence, said: “The recalls of CCC legislators by Sengezo Tshabangu, claiming to be the party’s Interim secretary-general, have provoked, ignited, and sparked controversy and accusations of illegality and unconstitutionality not only against the author of the recalls but against the decision and prosecution the recalls in the name of CCC using public power to declare the votes during the August 2023 elections void and this triggering the proclamation of the by-elections by President Mnangagwa whose conduct informed by his coup-centric practices and custom falls within the ambit of s. 2(1) that provides that President Mnangagwa is not the supreme law but the constitution of Zimbabwe is and consequently, his arbitrary, unilateral, capricious, and irrational decision and conduct in relation to the recall affair constitutes an impeachable exercise of public power for an ulterior motive.”
Mr. Antonius Clarke, a member of JUROL CANADA, stated: “It is clear that no President has the title and jurisdiction to proclaim a non-existent vacancy that was created by a person who, on his own version, admits that the CCC was a legal nullity and, furthermore, whose dubious self-created position of an interim nature exposes the fraud in the recall affair as no party would have a constitutional and valid position that is temporary. Constitutions are living documents and the positions created by its members are constitutional ones that confer power and authority to act in the name of the institution that acts for in this case it is not clear how a substantive position that was held by Hon. C. Hwende mutated into a controversial legal nullity of Interim Secretary General.
To the extent that contradictory letters were written to the Speaker by purported members of CCC, the Speaker in terms of s. 2(1) of the Constitution had no title and jurisdiction to sit as a Presiding officer in determining the legality and validity of Mr. Tshabangu’s authority and power to invoke s. 129(1)(k) and subsequently for the President to trigger the proclamation of the by-elections decision as he did in violation of the doctrines of the separation of powers and equality, as fundamental tenets of the rule of law.
In the premises, the conduct of the President in this recall scandal falls within the ambit of s. 167(2)(d) as read with s. 167(3) of the Constitution that gives exclusive jurisdiction to the apex court to determine the validity and legality of the President’s proclamation affair.”
Illegality and Unconstitutionality:
Mr. Divine Mafa asserted: “The crux of the matter lies in the perceived illegality and unconstitutionality of the recalls orchestrated by Tshabangu. According to Section 129(1)(k) of the Constitution, a member of Parliament can only be recalled if constituents, through a petition, declare a loss of confidence. However, there is a lack of evidence supporting Tshabangu’s authority or the existence of petitions from affected legislators’ constituents.
The Challenge of an Interim Position:
Mr. Tichaona Mupasiri, a member of JUROL, stated: “Another key issue highlighted in the article is the questionable nature of an interim position, such as the one claimed by Tshabangu. The absence of constitutional provisions for interim or administrative roles raises concerns about the legitimacy of Tshabangu’s actions. The Interim position is akin to neither a duck nor a chicken, suggesting a lack of substantive power and authority of Tshabangu to lawfully and validly act as a representative of CCC when no evidence was ever placed before the court supporting his claim of legitimate authority and incumbency for him to invoke s. 129(1)(k) in the name of CCC.
Violations of Constitutional Principles:
Ms. Mona Jama, a member of JUROL CANADA, further stated that: “The recalls clearly violate fundamental principles outlined in Sections 2(1) and 2(2) of the Constitution, which impose binding obligations on every person to ensure that the constitution is the supreme law as a key foundational value against which the validity and legality of the series of decisions and actions prosecuted by Tshabangu’s and Speaker Mudenda’s can be tested by the judiciary as legitimate disputes requiring determination by an independent and impartial forum of which the President as the head of the Executive branch of the government did not possess and the Speaker as the head of the legislature, another branch of government that lacked title and jurisdiction to recognize and enforce Tshabangu’s untested authority and power to invoke s. 129(1)(k) of the constitution.”
Call for Constitutional Challenge:
Ms. Caroline Wessels asserted: “A challenge to these recalls in the Constitutional Court, citing Section 167(2)(d) as the weapon is well grounded on the basis that no one, regardless of their position, is exempt from the law, as emphasized in Section 2(2). The president, having taken an oath to defend the constitution, must be called to account for any potential misuse of public power based on his knowledge and involvement in the recall decision.”
International Support and Safeguarding Democracy:
In response to the President’s DNA involving the use of public power to undermine the rule of law, the time is ripe to call him to order and ensure that his conduct falls within the consistence ambit of s. 2(1) of the Constitution. It is important that this scandal be used to expose the systemic broken governance system that has been used to cause irreparable harm by the sitting President of Zimbabwe with impunity. In response to the alleged undemocratic actions, I unreservedly call for seeking support from the international community. This involves urging condemnation of ZANU-PF’s actions and demanding respect for the rule of law in Zimbabwe. The appeal underscores the importance of external pressure in safeguarding democratic values and upholding constitutional principles.”
The situation in Zimbabwe, characterized as a “recall affair,” prompts a call for prompt action to address the alleged illegality and unconstitutionality.
The international community is urged to play a role in condemning actions that undermine democracy and the rule of law.
Members of JUROL’s Call2Action emphasize the need for courage and determination to make a difference in protecting the rights of the people of Zimbabwe and upholding the Constitution.