Tichaona Mupasiri vs. President Mnangagwa on his Oath of Office: Scrutinizing the Validity and Legality of Conduct in the Birth and Prosecution of the Reconstruction Act

Introduction

In the legal battleground in relation to an application under Case Number CCZ 34/21 that Mr. Tichaona Mupasiri launched in terms of s. 2(2) of the Constitution that imposes a binding obligation to ensure that the promise entrenched in s. 2(1) that provides that the constitution of Zimbabwe is the supreme law, and as such any law, practice, custom, or conduct that is inconsistent with the constitution is void ab initio, the exchange between Tichaona Mupasiri and President Mnangagwa exposes President Mnangagwa’s culpability in relation to the birth and enforcement of the Reconstruction Act, specifically concerning the affairs of SMM Holdings Private Limited.

Mupasiri’s case is based on scrutiny of President Mnangagwa’s practice, custom, and conduct as it pertains to the oath of office he undertook, which is not only poignant in testing the validity and legality of President Mnangagwa’s coup-centric DNA, whether in relation to the pre-November 2017 coup or post-coup use of public power to justify his predetermined goals of substituting legitimate power and authority with his choices and getting away with it with the complicity and active involvement of the judiciary and the legislature as his puppets in crime.

The Reconstruction Act: A Legal Framework Under Scrutiny

The Reconstruction Act, a legislative tool that Mnangagwa intentionally and knowingly utilized to divest and deprive the control and management of 26 companies, including Schweppes Zimbabwe Limited, Zimre Holdings Limited, SMM, Steelnet, Tap Zambia Limited, and many others, has come under intense scrutiny in the context of the Tshabangu-led recall of CCC MPs and Councilors with Mnangagwa’s knowledge and involvement.

Mr. Divine Mafa, whose father Hon. Mafa, who was recently elected as Senator as a consequence of the August 2023 elections under the CCC political umbrella, said: “Initially I was tempted to accept that the recall affair was a project solely instigated and powered by Tshabangu and being a member of the JUSTICE UNDER RULE OF LAW, JUROL, an initiative to promote, protect and uphold the rule of law, I learned that Professor Mupasiri, had walked on the road using s. 167(2)(d) as read with s. 167(3) as constitutional weapons to hold President Mnangagwa accountable for his conduct in relation to the facts and circumstances associated with the reconstruction affair which I believe is another form of invalid and unlawful conduct that forms a pattern and custom perfected by President Mnangagwa to attack the rule of law and escape being accountable for his misconduct.”

He further said, “Having read Mupasiri’s court papers and President Mnangagwa’s answering affidavit that was prepared, signed by him, and boldly and audaciously placed before the court without the knowledge and involvement of the Attorney General as prescribed in s. 114 of the Constitution, I have decided that the recall, November 2017 coup, the demise of Ms. T. Mujuru’s political career, the post-coup elections form a linear and connected series of events that go a long way towards exposing Mnangagwa’s personal involvement and knowledge in the travesty of justice and rule of law that pose so grave a risk to an inclusive, prosperous and progressive future of Zimbabwe under a governance system that is rule of law-centric and compliant.”

Mupasiri, in his application that focuses on how the control and management of SMM Holdings’ shareholders and directors were recalled outside the four corners of legality and validity, contends that the Reconstruction Act, in its application to SMM, was born from arbitrariness, vindictiveness, and an abuse of public power. The crux of the matter lies in the fact that, like the recall and coup affairs, this legislation constitutes practice, custom, and conduct that is vintage Mnangagwa, who has escaped accountability and culpability for authoring fraudulent schemes that are not consistent with constitutional principles and the rule of law.

Mupasiri’s Allegations: President Mnangagwa’s Role

Mupasiri alleges that President Mnangagwa, in his capacity as a public office bearer under Mugabe’s administrations for 37 years and subsequently as the head of the government pursuant to Mugabe’s unconstitutional recall, used the army as the weapon to induce Mugabe to accept the suicidal resignation under the guise that the Central Committee of ZANU-PF had valid tile and jurisdiction to give Mugabe the red card when no such power and authority existed, similar to Tshabangu’s conduct in relation to the recall affair, was actively involved in the birth and enforcement of the Reconstruction Act.

The contention is that Mnangagwa, through stolen executive powers, has wielded and continues to wield public power that has been used to punish and destroy Mawere, the owner of SMM Holdings. Mupasiri asserts that Mnangagwa’s conduct, which is omnipresent in the recall affair and in his pathway to the Presidency of ZANU-PF and the Republic of Zimbabwe, systemically violates the principles of separation of powers and equality, constituting an affront to the Constitution.

Oath of Office: President Mnangagwa’s Constitutional Obligations

At the heart of the matter is President Mnangagwa’s oath of office, a solemn commitment to uphold, defend, obey, and respect the Constitution. Mupasiri argues that Mnangagwa’s actions in relation to the Reconstruction Act contradict this oath, as they allegedly undermine constitutional principles.

Mnangagwa, on the other hand, will never admit that he is a constitutional delinquent and will maintain that even the recalls and consequential proclamations he made for by-elections fall within the bounds of valid and binding legislation and that any challenge, including that of Mupasiri, is unfounded.

Public Policy Considerations: Balancing Individual Freedom and Public Order

The legal tussle also brought to light the broader question of public policy and judicial complicity and capture in relation to the Malaba-led apex court, considerations.

In relation to his court submissions, Mupasiri contended that the Reconstruction Act was and remains a barbaric and satanic enterprise that jeopardized public order and constituted a threat to individual rights.

He argues that laws resulting in the deprivation of rights without due process are void ab initio, yet it is now 19 years old, courtesy of Mnangagwa’s force and the fact that he is the law and remain untouchable, while his victims, including the CCC members, believe that they can seek refuge from a captured judiciary.

It is striking that Mnangagwa using the agency of DMH Attorneys, in response, asserted the validity and binding nature of the Reconstruction Act and dismissed Mupasiri’s claims of its adverse impact on public policy.

Conclusion: Seeking Justice and Accountability

Mr. Peter Smith, a director of the JUROL MEDIA EXCELLENCE pilot project, said: “The case of Tichaona Mupasiri vs. President Mnangagwa raises fundamental questions about the validity and legality of the Reconstruction Act and the conduct of the head of state.”

Mupasiri laments that he regrets having been silent when a judge of the Constitutional Court, via correspondence transmitted through the Registrar of the Court, protected President Mnangagwa from accounting for how he opposed the application issued on December 17, 2021, that he and the Sheriff were unable to serve on the President and permitted him lawfully and validly to oppose when no papers were served on him between the issuance of the application and December 24, 2021, when an affidavit in support of the opposition was placed before the court.

It is shocking and instructive that an interlocutory application that Mupasiri launched challenging the legality and validity of President Mnangagwa’s affidavit in support of the opposition to his application was determined outside the four corners of this apex court, resulting in him choosing to withdraw his application as it was clear that it was an exercise in futility.

Notwithstanding, he was subjected to costs order as a sign that when it comes to the affairs of President Mnangagwa, the apex court with the exclusive jurisdiction to deal with s. 2(1) matters would rather abdicate from its constitutional duty that holds the political maestro, President Mnangagwa than face his unforgiving wrath using public power.