Mr. Robert Chiduku weighs on the Legal Perspectives on the Constitutional Implications of Advocate Thabani Mpofu’s Role in the Recall Affair”

Introduction:

The recent developments in Zimbabwe surrounding the recall affair and the involvement of Advocate Thabani Mpofu as an agent of the CCC recalled MPs and councilors have sparked a robust debate on the validity and legality of the actions taken.

Mr. Robert Emmanuel Chiduku, a member of the JLI-AI Pilot Project, who is based in Lusaka, Zambia, has responded to the conclusion made by the JLI-AI Project Team to promote and protect the constitution as the supreme law of Zimbabwe and the only lawful and valid standard to use in terms of s. 2(1) of the constitution to test any practice, law, custom, or conduct’s constitutional validity and legality.

He asserted that “I felt compelled to provide my own organic insights into the unprecedented and novel recall affair that was given birth to by Tshabangu on dubious facts and circumstances and surprisingly recognized and enforced using public power by two of the three branches of the government of Zimbabwe, i.e., the executive and legislature, to divest and deprive duly elected office bearers of their right, title, and interest as office bearers in relation to the affairs of the government of Zimbabwe with chilling constitutional implications, particularly in the context of Section 2(1) as read with Section 2(2) of the Constitution of Zimbabwe. I am astounded by the eloquence in the silence of the generality of the Zimbabwean public in this matter, which has placed the President on a slippery constitutional slope in relation to the validity, legality, and legitimacy of using public power to recognize and enforce a fatally defective or invalid Tshabangu recall, a project that has resulted in prejudice to the constitution as the supreme law and thus impeachable presidential conduct.

Validity and Legitimacy of Advocate Thabani Mpofu’s Conduct:

Mr. Chiduku further asserted: “My views on this matter are informed by s. 2(2) of the Constitution of Zimbabwe, which imposes binding obligations on every person, juristic and natural, to ensure that any law, practice, custom, or conduct that is inimical to the rule of law is void ab initio, meaning that it was void when the idea of recalls visited Tshabangu’s mind and also when the President issued a proclamation to give legal force and effect to an invalid process and experiment.

The invalidity started in the minds of Tshabangu and all those who were privy to this travesty of justice and the rule of law.

Of particular concern is that Chamisa’s close friend and legal representative of the affected MPs and councilors could not see through the recall affair and its umbilical cord connecting it directly to the mind of President Mnangagwa, who, by recognizing and enforcing this sham and fraudulent enterprise, associated himself with the entire recall project to place his conduct within the ambit of s. 2(1) of the Constitution, and in terms of s. 167(2)(d) as read with s. 167(3), the Constitutional Court has the exclusive title and jurisdiction to hear and determine whether the conduct of the President is constitutionally valid and lawful.

On the premises and to the extent that the constitutional power and authority vested in the President were directly implicated in the recall affair, the inescapable conclusion is that the High Court and the Supreme Court lack title and jurisdiction to be involved in the recall affair because, absent the intentional involvement of the President, the recall project would have had no life at all to result in any litigation.

I hold the view held by many JLI-AI members that Advocate Mpofu’s conduct, together with the judges and other value chain actors in this matter, raises valid questions that demand a thorough examination.

It is self-evident that the crux of the matter lies in the violation of the separation of powers doctrine. Given that, in order to determine the validity, legality, and legitimacy of the recalls instigated by Tshabangu, one is compelled to determine the legality, validity, and legitimacy of the President’s practice, customs, and laws that he has crafted during his tenure as a public office bearer, whose effect has resulted in the divestment and deprivation of rights and freedoms entrenched and enshrined in the Constitution of Zimbabwe.

Although I am a layperson, my common sense tells me that the elephant in the affair is President Mnangagwa, whose conduct in relation to the affair cannot and should not be protected from being held to account for its use in hijacking the control and management of the affairs of the CCC using s. 129(1)(k) as a weapon.

I, therefore, contend that there is a need to investigate whether the President has encroached upon the functions of other state organs, including the legislature and the judiciary.

Constitutional Implications under Section 2(1) and Section 2(2):

As a member of the JLI-AI Project, I must emphasize the importance of Section 2(1) as read with Section 2(2) of the Constitution of Zimbabwe and the evidence so far that we have combed through to support the allegation that the President’s audacity in taking the reckless step to proclaim by-elections with speed supports the view that his audacity is confirmation of his confidence that he is the law, and even the Constitutional Court would not dare seek to hold him accountable as was the case in all prior matters including his Tshabangu like ascendancy to the helm of ZANU-PF absent any lawful and valid mechanism to do so as he was expelled from the party meaning that he had no legitimate legal basis to ascend to the position in the party and government positions.

It is trite that Section 2(1) establishes the supremacy of the Constitution, making it the supreme law of the land.

Attack on the Constitution: Recognition of Tshabangu’s Recall Enterprise:

It is not in dispute that Tshabangu’s recall enterprise was supported by the recognition by the President, utilizing public power, of the applicability, legality, and validity of s. 129(1)(k) to the facts and circumstances of Tshabangu’s purported relationship with the person of CCC, as a living, lawful, and legitimate vehicle to effect the recalls. The use of public power, as endorsed by the President, becomes a focal point in the necessary and inevitable constitutional analysis.

Creation of a Precedent and Constitutional Limitations:

The enforcement of recalls through the proclamation of by-elections creates a precedent where a “straw person” can benefit from Section 129(1)(k).

This custom, practice, or conduct undermines the constitutional duty of all government office-bearers to obey, respect, defend, and uphold the Constitution as the supreme law of the land. I unreservedly assert that any conduct, law, practice, or custom, including those of Advocate Mpofu, should be subject to the limitations of constitutional validity applicable to all persons.

Conclusion:

In conclusion, Mr. Robert Emmanuel Chiduku’s analysis sheds light on the relevant and cogent constitutional issues surrounding Advocate Thabani Mpofu’s role in the recall affair.

The concerns raised about the potential violation of the Separation of Powers doctrine, the recognition of Tshabangu’s recall enterprise, and the creation of a precedent highlight the need for a comprehensive examination of the legal and constitutional aspects of this unfolding situation.