Madhuku, Magaisa Clash Over Presidential Immunity
8 November 2021

By A Correspondent| Constitutional law experts Professor Lovemore Madhuku and Dr Alex Magaisa have once again clashed over the interpretation of the constitution.

This follows President Emmerson Mnangagwa’s claim in a High Court affidavit that he is immune to civil and criminal prosecution.

In different comments made to a local daily, Magaisa said Presidential immunity did not apply in the Sybeth Musengezi’s High Court challenge in which he is suing the ruling Zanu PF and its leader for breaching the party constitution when he assumed power post November 2017 coup.

Magaisa said the issues cited by Mnangagwa that he was immune from prosecution were a “sideshow” that did not affect the fundamentals of the case.

He cited the 2018 High Court case of Elias Mashavira against the MDC-T, in which Nelson Chamisa was declared illegitimate leader of the opposition party, as having set precedence for Musengezi’s application.

“The case does not stand/fall on his (Mnangagwa’s) immunity. Musengezi sued Zanu PF, Mnangagwa and other party officers. Let’s assume for a moment that Mnangagwa’s immunity defence is valid, it doesn’t apply to Zanu PF and the other parties. They must answer the lawsuit and they must decide whether their conduct was lawful.

“The outcome will still be consequential upon Mnangagwa. Musengezi is relying on the (Elias) Mashavira case against the MDC-T. Just like Mashavira, Musengezi sued the party and its officers. The Mashavira court directed party officers to correct past irregularities of the party,” said Magaisa.

Magaisa was supported by another law expert Tawanda Mapuranga who said even though the Constitution had provisions of the President’s immunity, it did not change the nature of the application before the courts.

But Madhuku said there was no chance that the High Court would rule that Mnangagwa is not immune.

“Section 98(1) states that while in office, a President is not liable to civil or criminal proceedings in any court for things done or omitted in his or her personal capacity. There is no chance for the court to give a different interpretation of section 98,” he said.

“The question, which may arise is, what is meant by his personal capacity. But then, according to the constitutional provision, let’s take for instance, if his wife wants to file for divorce, she cannot do so during the period he is in power. She will have to wait for the President to step down, and then file for proceedings. When the court upholds section 98(1), it will be the collapse of the case.” said Madhuku.

Madhuku and Magaisa have previously clashed over interpretation of the constitution following the resignation of vice President Kembo Mohadi.

Magaisa said Mnangagwa was supposed to inform Parliament of Mohadi’s resignation but Madhuku shot it down saying since he was a Presidential appointee just like cabinet ministers, there was no need for such.

Madhuku further noted that only when the running clause comes into effect is the President expected to notify Parliament Parliament the resignation of his deputy.