South African based Zimbabwean tycoon Mutumwa Mawere has filed a court application to set aside Justice Rita Makarau’s judgement dismissing his demand for her recusal so that he can intervene in the Tichaona Mupasiri case impeaching President Emmerson Mnangagwa for breach of oath of office.
Mupasiri, Director of Public Policy of the Justice Under Rule of Law (JUROL), believes President Mnangagwa has committed perjury and obstruction of justice in the matter.
The facts are as follows:
On 24 February 2022, Mawere issued an application for the recusal of Makarau JCC.
Although the application was not targeted at President Mnangagwa, DMH Attorneys, strangely filed a notice of opposition to the application for recusal on behalf of the President who in terms of his oath suffered no prejudice if the Court determined that Makarau JCC should have been recused on the basis of the allegations made in the application.
The President chose to align himself with Makarau JCC without explaining the context in which an independent and impartial President would possibly be harmed if Makarau JCC was recused from presiding in the matter or not.
In this matter, the President was represented by the firm, DMH Attorneys as shown below:
In terms of s114(4)(d), it is the Attorney General, appointed by the President, who has exclusive jurisdiction to represent the government in civil and constitutional proceedings yet in this case President Mnangagwa is not bound by the limitations imposed by the Constitution to appoint his personal lawyers to act on him in a constitutional matter related to the exercise of his constitutional duties.
Below is an extract from the Constitution of Zimbabwe that shows that it is the AG that should have engaged DMH to act in this matter under his supervision.
The AG should in a constitutional dispensation be the principal legal advisor to the government but the first citizen of Zimbabwe has no confidence in him to allow him to appoint his private legal advisors to act for him in these constitutional matters.
The President was the deponent in the matters as set out below:
President Mnangagwa states as true and the fact that he swore to were known to him and were true and correct.
In paragraph 10 of his affidavit in opposition to the recusal application, he stated as follows: THE APPLICATION UNDER CASE NUMBER 12064/05 WAS DISMISSED FOR LACK OF MERIT.
It is not in dispute that the matter under Case Number 12064/05 was presided by Makarau J (as she was known then as).
The applicant in the matter was SMM Holdings Limited (SMMH), the sole parent of SMM. The then Minister of Justice, Legal & Parliamentary Affairs, Hon. Patrick Chinamasa was the Respondent in the matter.
It is worth highlighting that the Second Intervening Party in the current matter is SMMH. It is also striking that Mr. Edwin Manikai acted for Chinamasa.
The application was for the review and setting aside the decision by Chinamasa to issue a reconstruction order against SMM.
The Applicant raised four grounds for the relief sought as follows:
That Chinamasa breached the rules of natural justice in failing to afford SMM’s UK registered parent, SMMH, and SMM, a hearing before issuing the order.
That Chinamasa had ulterior motives for the order.
That Chinamasa did not possess any jurisdictional facts to entitle him to exercise his discretionary power to issue the reconstruction in relation SMM, a private company.
That the reconstruction was in conflict with the specification of SMM issued on 26 August 2004.
Chinamasa opposed the application.
Manikai has fingered President Mnangagwa as the driving force behind this naked use of public power to create facts that could never have visited a Minister who was independent and impartial to the reality of the matter.
Contrary to what President Mnangagwa stated under oath, Makarau JCC stated in 2005 categorically as follows:
Makarau JCC in a matter that Manikai prosecuted stated: “In view of the decision I have reached above on the preliminary issues raised in this application, I consider it unnecessary that a proceed TO DETERMINE THE MATTER ON MERITS.
It is not in dispute that President Mnangagwa lied under oath that Makarau JCC had considered the merits in the dispute to arrive at the conclusion that the matter should be dismissed.
To the extent that she ignored the merits, it followed that there was no judgment to appeal, rescind or review.
Will the Constitutional Court compel President Mnangagwa to admit that he lied under oath?
This is the question that the Constitutional Court is compelled to answer.
Is this lie material and permissible in terms of his constitutional oath of office? Does he deserve to be convicted and removed from office because committing perjury and obstruction of justice plus lying under oath is clearly a crime in Zimbabwe?
Mukoma Masimba, a member of JUROL based in Australia, who has been following this matter closely said: “The President’s conduct is clearly impeachable.
The President knew and ought to have known the truth, especially having regard to the fact that Manikai was the prosecutor of the matter and participated in the unjust award of a judgment of the court to sanitize the barbaric takeover of private companies on the basis of facts that were self-created and prosecuted with the complicity of crooked judges like Makarau JCC.
I believe that the threshold of impeaching the President in terms of s167(2)(d) as read with s167(3) has been met.
The Applicant was a foreign domiciled company and the mere fact that the President has knowledge that Makarau JCC presided over a matter that she chose to blind to her oath and got away with it, imposes an obligation on the President to fire her but clearly after defending her in these proceedings, this is unlikely.
The fact that the President can openly align his Presidency and oath to persons like Makarau JCC together with her accomplice, Manikai, raises the flag that compels the Constitutional Court to step up to the plate in the interests of justice and also national interest.
President Mnangagwa was elected to put national interests first and he swore to uphold the rule of law.
It is significant that Makarau JCC brazenly and capriciously dismissed Mawere’s application for her recusal.”