By Dr Masimba Mavaza | The case of Sybeth Musengezi v ZANU PF, Emmerson Mnangagwa, and others has been a systematic attack on President Mnangagwa and the party at large. The case being a loud sounding nothing, has captured the attention of the media and citizens. Alex Magaisa took time to argue his biased side even though the truth remains that this is a case where someone is trying sponsoring the destabilisation of the party and the nation. Musengezi says he is a member of ZANU PF who is aggrieved by how the succession of Mnangagwa to the helm of ZANU PF was handled 4 years ago when the new dispensation was ushered in.
Unlike what Magaisa says, the challenge which is mounted by Musengezi is a direct attack on the presidency of Mnangagwa and the legality and legitimacy of his rule. This casts brighter aspersions on the unending song of legitimacy which has been sung by the MDC and all those who were offended by the new dispensation.
This gives us a clear light defining the nature of the litigation. It is lame to say what is targeted is only the presidency of the party and not of the country. The foundation of the national presidency is the presidency of the party. It is a joke to say that he is not challenging the violation of the national constitution. The truth is Sybeth Musengezi is simply a face of the plotters who plotting to remove Mnangagwa from the high seat. It is further not true that he is challenging the alleged violation of ZANU PF’s constitution if he was he would have followed the very ZANU PF constitution in grievance and mediation process.
In a veiled push to remove the president from office, Musengezi pretends to be challenging the ascendency of president Mnangagwa to the party’s presidency saying it violated the constitution of ZANU PF and he wants it corrected. This is the narrative Magaisa has ran with in an effort to vilify the good governance of president Mnangagwa.
It has become so clear that there is an evil hand fighting ZANU PF. One of the ugly sides is the attempt to equate In this Musengezi’s to a case that was brought against the MDC in 2018 by Elias Mashavira who argued that the MDC constitution had been violated.
Musengezi’s case is a mischievous attempt to throw Zimbabwean governance into further confusion.
The case is simply naughty and mischievous his arguments, vague and embarrassing.
The case has all signs of brutal war as can be seen by the exchange of letters between the lawyers of the opposing sides. It becomes very clear that this case was meant to embarrass the president hence the way it is playing in the gallery. It is not normal for lawyers to publish communications between them. The behaviour of Msengezi’s lawyers of publishing the letters and seeking to create headlines shows that the aim of this case is to create a distraction.
Mnangagwa has a job to do and he is doing it well.
The exchange between the lawyers has escalated matters and shown that there is someone from the dark world trying to derail the work of ZANU PF and its people.
This matter is playing out in the public arena, it is evil and wrong to politicise the legal system. Firstly it is clear that the application itself is unlawful and unconstitutional. This is because the case breaches
presidential immunity accorded to the one in the office of the president. So the president has presidential immunity and should not be brought to court in his personal capacity. The national constitution confers immunity from any personal lawsuits while a president is in office. The relevant provision is section 98(1) of the constitution which states as follows:
“While in office, the President is not liable to civil or criminal proceedings in any court for things done or omitted to be done in his or her personal capacity.”
So the law suit should wait until the president leaves office. We can not divide and try to split the facts here. The Mnangagwa cited in this case is the President of Zimbabwe. It is of consequence that the facts of the matter refer to the actions or omissions done on the way to the presidency. This does not change the facts. mnangagwa remains the president and any personal suits do not stick on the president while he is in office.
Those taking aim at the president are people in the party who have always disliked the ascendency of the president to the high office. This is a factional war gone legal.
The way of ZANU PF is always that if you are aggrieved in any way by the happenings in the party you follow the party procedures. The party disciplined members know better not to wash their dirty linen in public. The spectacle being created is meant to divide the party.
Taking your own party to court is like taking yourself to court.
This case will in turn embarrass the plotters. It is a none starter a case against the legally protected become a nuisance.
Yes this was a well calculated case which presents a little headache but has no impact on the decisions made by the party.
What is clear again is the fact this case is an assault on the stability of Zimbabwe. The plotters of this case are trying to peddle the nonsense of legitimacy. In a nutshell, the defence of presidential immunity stands or falls with whole case. So the legal proceedings are a sham and should not see the light of the day.
Musengezi was supposed to exhaust the internal remedies before rushing to court.
The doctrine of exhaustion of administrative remedies says that a person challenging an agency decision must first pursue the agency’s available remedies before seeking judicial review. It was created by courts in order to promote an efficient justice system and autonomous administrative state.
Faced with a jurisdictional exhaustion requirement, courts have had to choose between diluting the concept of jurisdiction and allowing injustice.
Courts generally will demand that you have required that internal union remedies before suing an organisation.
President Mnangagwa and ZANU PF correctly argued that Musengezi should be barred because he did not exhaust all internal remedies in ZANU PF before approaching the court. They are referring to the principle that a person must exhaust internal remedies within an organization before approaching the courts for relief.”
Ordinarily, this would be a plausible argument that was upheld by the High Court in the case of Bhasikiti v ZANU PF in 2015. Bhasikiti had challenged his expulsion from ZANU PF. Justice Bhunu who presided over the matter dismissed his case on the technicality that he had not exhausted the party’s internal remedies. Bhasikiti had argued that President Mugabe was an interested party because he chaired the relevant organs of the party and would not, therefore, get a fair hearing. However, Justice Bhunu told him that Mugabe could recuse himself and allow other committee members to hear Bhasikiti’s case.
This case will apply in the present case. Sybeth should be redirected to the party and follow the procedure.
If at all there was an inch of illegality in the case the case must be thrown out because the event has happened and if there was a harm and it becomes irreparable.“The court must retain its discretion to hear a moot case where it is in the interests of justice to do so,” wrote Justice Patel in the leading judgment. Citing legal authorities, Justice Patel concluded that “the court may exercise its discretion to hear a moot issue because of its significance, practical or otherwise, and the need for an authoritative determination on that issue in the interests of justice”.
So the case before courts now has expired. There will be no positive corrective intervention if the courts are to give an order. The case is inly academic.
Judge Patel sitting in the Court of Appeal said “I take the view that the corrective intervention of this Court in the affairs of the Party is a matter of significant public importance, not only in relation to the Party and its members but also as regards the governance of political parties generally. It is necessary that the Court should deliver its definitive pronouncement on the legitimacy of the second appellant’s ascent to the presidency of the Party. It is further necessary to ensure that the leadership of the Party is constitutionally and lawfully ensconced. The imbroglio that the Party’s leadership has become entangled in may well be water under the bridge. But it is a bridge that, for the sake of the Party’s stature and credibility, needs to be correctly and systematically constructed. In short, notwithstanding the political mootness of this matter, it is imperative that there should be an authoritative determination of this appeal in the interests of justice.”
This comment by the learned Judge Patel J only applies to the party’s leadership. In the case between us the Respondent is now ring fenced by immunity and thus any case especially a mooted one will nor stick on the respondent. The noble thing to do is for Musengezi to withdraw his tome wasting application.
We tend to agree with Justice Patel that leadership must be “constitutionally and lawfully ensconced”
Musengezi forgot that Mnangagwa was fired and reinstated by the Central Committee. In short the central committee reinstated Mnangagwa back to his original position. This means that Mnangagwa became the most senior member as Mphoko had escaped. So re employment unconditionally attached the position which Mnangagwa had.
It is further true that the case is now water under the bridge and should not be allowed to waste the court’s time.
The whole case has fingerprints of the G40 cartel and the reliance on the social media is the foot print of the opposition.
While Sybeth has a right to take the case to court. He is travelling on the MDC ticket. The ticket of distraction is the one being offered by the opposition. Sybeth became a traitor. Zimbabwe must rethink the position on people who a attack the country when they ate outside. The war against zanu pf