ZIMBABWEAN President Emmerson Mnangagwa says he cannot be taken to court over his alleged unconstitutional and illegal seizure of Zanu PF leadership as he is now a sitting state President protected by the national constitution.
He also says he
cannot be sued in his personal capacity, although the applicant is suing him as
leader of the ruling party. This suggests Mnangagwa is raising a strawman’s
argument. A strawman is a fallacious argument that distorts an opposing
position in order to make it easier to attack them.
Essentially, the person using the strawman pretends to
attack their opponent’s stance, while in reality they are actually attacking a
distorted version of that, which their opponent does not necessarily mean or
support. Zanu PF member Sybeth Musengezi has taken Mnangagwa to court — not in
his personal, but official capacity as Zanu PF leader — saying he was not
properly elected as head of the ruling party by the central committee on 19
November 2017 after the coup.
As a result, Musengezi is seeking a declaratur against
Mnangagwa that the special session of the Zanu PF central committee meeting
after the coup at party headquarters in Harare from 10am to 4pm was ultra vires
the party constitution, unlawful and thus null and void ab initio.
He also wants the
court to rule that all the resolutions of the central committee meeting passed
during its unlawful gathering to install Mnangagwa as party leader were
“unlawful, invalid and are accordingly set aside”.
However, Mnangagwa says: “The President’s capacity in the
party must not be confused with his official capacity as the President of the
Republic of Zimbabwe”.
He further argues he has immunity: “I am advised that
Section 98 of the Constitution of Zimbabwe 2013 provides for presidential
immunity. It reads 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; civil or criminal proceedings maybe
installed against a former president for things done or omitted to be done or
before he or she became president or while he or she was president;
“The running of prescription in relation to any debt of
liability of the President arising before or during his or her term of office
is suspended while he or she remain in office; “In any proceedings brought
against a former president for anything done or omitted to be done in his
official capacity while he or she was President, it is a defence for him or her
to prove that that thing was done or omitted in good faith. “It follows that
section 98 (1) creates presidential immunity. The literal import of the section
is very clear. There is no need for any aids to interpretation of this section.
The import of .section 98(1) is that whilst in office, the President of
Zimbabwe is not liable to any civil or criminal proceedings in any court for
things done or omitted to be done in his personal capacity whilst in office.
The section confers immunity to prosecution to a sitting President,” the papers
say.
“It is important to note that the theory of presidential
immunity is not found in Zimbabwe alone. It is one that is common in most
democracies. Section 98 entitles the President of Zimbabwe to absolute immunity
for civil and criminal infractions whie he is still in office. The immunity
insulates him from any civil or criminal prosecution.
“The High Court therefore has no jurisdiction to try the
President for any cause against him in his personal capacity whilst he is still
in office. The provision is part of our constitution which is the supreme of
the country and hence is authoritative on that point. The inescapable
conclusion is that section (98) of the constitution creates presidential
immunity,’ the papers say.
“This court has no
jurisdiction to try the president of Zimbabwe. The court must therefore decline
to exercise jurisdiction over the president of Zimbabwe. The court must
therefore decline to exercise jurisdiction over the president of Zimbabwe.”
Mnangagwa also says the applicant (Musengezi) did not seek
leave of the court to sue the President, as is required by rule 12 (21) of the
High Court Rules 2021, which provides as follows: “No summons or other civil
process of the court may be sued against the President or against any of the
High Court judges without leave of the court granted on court application of
that purpose. It follows that the purpose of the rule 12 (21) is to protect the
president from frivolous and vexatious litigation such as this one,” he says.
“No leave has been sought to sue the second respondent
(Mnangagwa) in this matter. The first respondent (Zanu PF) is improperly before
the court and the relief sought against him can’t granted. The matter is
defective and cannot go beyond this point. The whole application falls away on
this point alone. It must be struck off the roll with costs.”
Mnangagwa’s lawyers also say Musengezi does not have locus
standi (legal standing), underlined by sufficient interest or competence to
bring the proceeding. They also say the applicant failed to exhaust internal
remedies to address the issue. The applicant, Mnangagwa argues, took too long
to bring the case beyond the prescription years.
Further Mnangagwa says the application is now moot
(academic) and is incompetent in terms of the law. On merits, Mnangagwa says
Musengezi is not a member of Zanu PF. He also denies that the central committee
was convened illegally. These arguments were filed by Zanu PF Secretary for
Administration Obert Mpofu on behalf of Mnangagwa and other respondents with
their consent, according to the court papers.
In the explosive lawsuit, Musengezi is demanding that the
court should follow the precedent set by the opposition MDC-T case in the
Supreme Court and resultantly force Mnangagwa to step down pending resolution
of the issue. Mnangagwa’s lawyers completely ignored the Supreme Court
precedent in relation to the MDC-T and how it impacts on the Musengezi
application. NewsHawks
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