Who appointed DMH Attorneys to act for President Mnangagwa?

The murky and unconstitutional facts and circumstances relating to the appointment of DMH Attorneys spilled into the Constitutional Court of Zimbabwe on 23 March 2022 when an official of the Attorney General’s office who happened to be in Court on the same day exposed her lack of knowledge on how the prosecution of the matter under Case Number 34/21 was being handled without the involvement of the AG’s office.

She made astonishing revelations that no papers were served on the AG relating to this matter and she indicated that she was unable to add any value to the matter.

Mr Konongwe, an Associate working of DHM, stood up to address the Malaba-led panel of judges and misrepresented that in truth and fact, the AG’s office had outsourced the legal work to his firm.

To confirm this, he handed a copy of a letter dated 26 January 2022 to her.

It is this letter that erked the Applicants in the matter.

Mr Mawere, the Second Applicant addressed the Court on this issue alleging that the letter was nothing but a fraud intended to mislead the Court into believing that DMH was lawfully engaged by the AG when no facts existed to support this version.

The correct facts have now emerged from the Sheriff’s return of service that shows that Mupasiri issued his application on 17 December 2021 and on 20 December 2021 the Sheriff tried unsuccessfully to serve the papers on the President using official address at Munhumutapa Building.

The Sheriff was directed to serve the papers at the Ministry of Justice, Legal and Parliamentary Affairs

The record shows that the Private Secretary of the Minister refused to accept service and that was the end of the process.

Surprisingly, on 24 December 2021, President Mnangagwa who was not served with any papers and as such had no official knowledge of the existence of the application, filed his opposing papers using the agency of DMH.

It is worth highlighting that Mr. Edwin Manikai who Mr. Mupasiri cited as the Second Respondent, was served by me.

Mr. Mupasiri said: “I found it strange that President Mnangagwa opposed an application that he had not been served.

This discovery left me with the uncunny feeling that the President had been captured to allow a third party non-state actor, Manikai to be the conduit for service to the President who in terms of the Constitution has a duty to obey and uphold the constitution that gives the AG the exclusive jurisdiction to handle all civil and constitutional matters on behalf of all public office bearers.

The constitution prohibits the President from being involved in the procurement and processing of matters related to external lawyers.

I was shocked to see that the opposing affidavit was signed by the President on the advice of DMH Attorneys.

I was then required to respond to the papers using DMH Attorneys as the President’s legal representative.

President Mnangagwa knew and ought to have known that it was impressible for him to deal directly with a private law firm.

I shudded to imagine how the conveyancing of the legal mandate and services was effected especially having regard to the fact that I sued the President in his official capacity and as such this precluded any direct involvement of the President in procuring the services of DMH.

Given that my application did not reach the President, the only plausible vehicle for the papers to reach him is that DMH informed him of the application and it must have been agreed between Manikai and directly with the President that given that they were Respondents in the same matter, the legal work should be handled by DMH with no regard to the constitutional limitations.

Against this background, I was compelled to establish directly from DHM how the firm’s services to act for the President in his official capacity were procured.

I did this by way of a letter dated 27 December 2021.

DMH ignored my letter. I was surprised to receive a letter dated 14 January 2022 from the Registrar of the CCZ informing me of directives to file my Heads of Argument by 26 January 2022 and that the matter had been set down for hearing on 9 March 2022.

as a self-actor, I had no idea of how to respond to the directions especially having challenged the basis of the authority of the President’s decision to act ultra vires the constitution in relation to the appointment of DMH to prosecute the matter.

The only option left to me was to formally launch an interlocutory application to challenge the authority issue.

Before the President could deal with this troubling question that touches on the relationship between him and DMH, I received another letter from the Registrar to advice me that the issue of authority was going to be dealt with on 9 March and surprisingly the unnamed Presiding Judge exempted the President from filing an opposing affidavit.

Accordingly, to date the President with the support of the Court has not given his version under oath as to how he got to know of the existence of my application and more significantly how DMH was engaged to represent him without the involvement of the AG.

To add mystery to this saga, I received a copy of a bizzare letter from DMH that was addressed to Registrar of the CCZ that purported to explain outside the court processes and procedures that the firm was hired by the AG.

Atrached to the DMH letter was a copy dated 26 January 2022 of a letter signed by a certain Chimombe of the AG’s office who represented himself as the Acting Director of the Civil Division of the AG’s office.

This letter raised troubling questions because it referred to a letter from DMH to the AG’s office that was dated 12 January 2022 or well after the filing of the President’s opposing papers on 24 December 2022, which means that the AG’s knew of my application in January not from the President but from DMH.

Mr Chimombe without stating the facts related to the engagement of DMH misrepresented that the appointment of DMH was made by the AG when the AG’s office was not served with the initiating papers.

A member of the Justice Under Rule of Law (JUROL) then took the next step of phoning Mr. Chimombe to confirm that he had written the letter. Surprisingly, Mr Chimombe could not remember the letter and when more questions were asked, he dropped the call without providing any facts relating to this authority scandal.

My shock happened in court when Mr. Konongwe intentionally and knowingly misled the Court into believing that the prescripts of the Constitution were followed in the appointment of DMH to act for the President.

Malaba CJ was not interested in this matter being resolved during the hearing and chose to deflect it by suggesting that this should form the subject matter of the postponed hearing on 11 May 2022 notwithstanding the fact that the agenda for the hearing has been limited by an order of court to a single question of whether the CCZ has jurisdiction to hear the matter.”

Mr Mawere said: “I can confirm that I also raised the authority challenge in relation to my application for the recusal of Makarau JCC in which President Mnangagwa filed an opposing affidavit using the agency of DMH Attorneys.

Makarau refused to deal with the challenge and proceeded to give audience to DMH without establishing the basis of DMH representing the President in the absence of any official document supporting the allegation that the appointment was done above board.

It is significant that Makarau JCC refused to give reasons as required in terms of s68(2) of the Constitution for her decision to dismiss my application for her recusal.

I was surprised that Konongwe on behalf of the President chose to use a fraudulent letter to support his contention that DMH was properly and lawfully appointed.

The Chief Justice said that the issue could not be raised on 23 March and by default it was already killed.”

Mukoma Masimba who is based in Australia and a member of FOSMM said: “If the apex court can openly exempt the President from complying with the Constitution, then the Mupasiri application is doomed.

I have heard people like Trevor Ncube speak opportunistically about judicial capture without any shred of evidence supporting their allegations but this Mupasiri dispute is exposing the complicity of the court in undermining the rule of law.

How can public funds used to engage DMH without any transparency and accountability?

The President is a public trust and in exchange for his oath he undertook to obey, respect, defend and uphold the constitution as the supreme law.

The constitution prohibts the President from conducting himself as if he is above the law yet in this case he has been exposed but the Court has already shown its hand and in so doing render the Mupasiri application an exercise in futility.”

Set out below is an article that speaks to the reality of an unaccountable government in which the AG’s constitutional duty is undermined with the complicity of the courts including the apex court: