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THE MUPASIRI JOURNEY OF DISCOVERY – FIGHTING WITHIN A RULE-BASED SYSTEM

By Professor Tichaona Mupasiri, Zimbabwe

Professor Tichaona Mupasiri

On Thursday, 26 May, 2022 expecting to be in Harare for only a day:

I arrived around midday knowing from the online case management system that my application for leave to appeal a costs order made by the apex court following my decision to withdraw my application under Case Number 34/21 had been rejected citing incompliance with the court rules.

I filed a Notice of withdrawal together with a supporting affidavit stating the grounds for my withdrawal of the matter.

On 11 May, 2022 the full bench of the Constitutional Court presided over my application of withdrawal.

It was surprising that although the President as the First Respondent and Mr. Edwin Manikai, as the Second Respondent, did not file any opposing papers. The firm DMH Attorneys whose agency in relation to my application formed the subject matter of my decision to withdraw, was instructed by the Respondents to oppose my withdrawal application arguing that instead of the relief sought to withdraw without costs should not be granted but the matters should have been dismissed without costs.

The court had the duty to determine whether the withdrawal was in the interests of justice and more importantly whether the usual practice of tendering wasted costs should be applied in relation to a constitutional dispute.

I naively expected that the Court would be able to apply its mind in the fact that in this unusual case, the President who ordinarily would be represented by the Attorney General (AG), a public office bearer, who whose job is to uphold and protect the rule of law and is already a beneficiary of public funds, would not seek to be rewarded with a cost order whose constitutional effect is to deny access to the public to challenge the President’s conduct.

In this instant matter, no facts were presented to Court on behalf of the President to explain how the President opposed an application that I was not able to serve upon him.

I had expected the Court to take notice of this bizarre and scary occurrence that permitted DMH to prosecute a matter on behalf of the President in his official capacity without the prior knowledge and involvement of the AG who in terms of s114 of the Constitution is vested with the exclusive jurisdiction to prosecute all civil and constitutional matters on behalf of the President.

DMH enjoys a special relationship with the President.

It is also the case that what provoked me to launch my application was my outrage when I learned that Manikai was boasting that he was part of a fraudulent scheme involving the use of DMH to exclusively substitute the AG in the prosecution of the SMM reconstruction decree.

Manikai had openly in a message to Mr. Mutanda on 27 March 2021 that what visited SMM in 2004 was triggered by a major political fallout between Mawere and the current President in relation to his succession project to succeed Mugabe that culminated in the coup of November 2017.

The facts that I established in the quest to understand the link between the succession project and the SMM established is that DMH was and continues to be the subject matter expert on anything to do with the SMM matters.

One of the Presiding Judges in my constitutional matter was surprisingly, Patel JCC, who was the Acting AG when the decree was promulgated and prosecuted by DMH who represented Chinamasa.

Chinamasa, like President Mnangagwa, had no jurisdiction to engage DMH’s legal services but for the last 18 years this firm was able to substitute completely the office of the AG in dealing with any dispute arising from the SMM related matters.

I could now see the bigger picture of why President Mnangagwa’s unholly pact with Manikai goes beyond that of principal to agent basis.

What has shocked me is that the apex cost has displayed beyond any shadow of doubt that it is not willing to confront this reality of the AG’s jurisdiction being prostituted with the knowledge and involvement of the highest office in the land to a private law firm.

The manner in which my case was handled inside the four corners of the apex has fortunately created a factual matrix that supports that this apex court has been captured.

With what I have established a prima facie case exists for an open and transparent investigation of the legality and constitutionality of the relationship between President Mnangagwa, Manikai, DMH, the apex court, the office of the AG using my experiences as a self actor and a citizen who in terms of s2(2) have a duty to protect, promote the constitution.

I discovered that the outcome of my constitutional application had already been predetermined when the court exposed its true character by refusing to determine my application to determine whether the opposition to my application was properly before the court without complying with the limitations imposed upon the President to be involved in commanding the involvement of DMH on opaque terms in the prosecution of his defence.

It is worth highlighting that the legality of the President’s ascendancy to the helm of ZANU-PF, a sine qua non for him to succeed Mugabe, forms the subject matter of Sybeth Musengezi’s pending court application.

If anyone didn’t understand why DMH is acting for President Mnangagwa in his personal capacity, when regard is had to the central role played by both Manikai and President Mnangagwa, who has admitted that he was Manikai’s alter ego in the onslaught against SMM and Mawere, the picture is complete as to why the court’s jurisdiction is crippled with the complicity of the Malaba-led court.

While I expected that the justification for my withdrawal would be accepted, I was not prepared for an order as to costs in a matter involving the blatant abuse of power as a reward to a President who is not subject to the application of the law and to benefit equally from its weaponization.

The reality is that against all constitutional principles regarding constitutional disputes, is that I now have an order to pay costs to DMH without the court suffering the burden of determining whether the President has jurisdiction to interfere with the AG’s mandate and jurisdiction.

I believe that justice must be associated with accountability and the rule of law.

In this case, the quest for constitutionalism has been thwarted inside the doors of court leaving me with no choice but to launch the application for leave to appeal against this unjust order.

About Constance van Niekerk

Constance van Niekerk, (Connie V) is a creative writer, poet, music lover, spoken word artist, freelance writer, blogger and educator. She has contributed to several anthologies and published her own collection, Echoes of My Heart: A Poetry Collection available for purchase on all Amazon Stores Worldwide. Follow her on Twitter : @convanniekerk Connect with her on Facebook and Linkedin.

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