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A critical examination of the Musengezi v Mnangagwa and Zanu PF litigation – NewsDay

Alex T Magaisa

The case of Sybeth Musengezi v Zanu PF, Emmerson Mnangagwa, and others has captured the attention of the media and citizens. 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 four years ago when former leader President Robert Mugabe was toppled in a palace coup.

In defining the nature of the litigation, it is important to clarify what it is not about. Musengezi is not challenging Mnangagwa’s presidency of Zimbabwe. Rather, he is challenging Mnangagwa’s presidency of Zanu PF, the political party. He is not challenging the violation of the national constitution. Rather, he is challenging the alleged violation of Zanu PF’s constitution. He argues that the ascendency of Mnangagwa to the party’s presidency violated the constitution of Zanu PF and wants it corrected.

In this way, Musengezi’s case bears a strong resemblance to a case that was brought against the MDC in 2018 by Elias Mashavira who argued that the MDC constitution had been violated. It is impossible to examine the Musengezi case without reference to that critical precident. With Musengezi being a little-known political actor and Mnangagwa and Zanu PF being the president and ruling party of the country, this is a David against Goliath affair.

The application was lodged at the High Court and as required by law; the respondents submitted their response, focusing predominantly on technical defences. Technical defences are where a party seeks to have the matter dismissed on procedural aspects, without going into the merits of the matter. In the past few days, however, the matter has drawn more attention after lawyers representing President Mnangagwa, Zanu PF and its officers cited in the proceedings wrote a highly charged correspondence to Musengezi’s lawyers. Musengezi’s lawyers responded, expressing reservations at the communication from the opposite end. This sideshow between the lawyers is unnecessary, serving only to obfuscate the crucial dispute between the parties which requires a judicial resolution.

The exchange between the lawyers has escalated matters and left many observers wondering what is going on. They asked for an explanation as to the implications of the exchanges between the lawyers. I have taken the decision, not without some reluctance since the matter is before the courts to examine the proceedings and their implications. Since the matter is playing out in the public arena, it is fair game and worthy of academic commentary. Law is a notoriously adversarial subject, one view often attracting an equal and opposite reaction. These are my observations on the ongoing matter and no doubt there may be many more.

Presidential immunity

First, Mnangagwa’s lawyers have pleaded presidential immunity in response to Musengezi’s challenge. 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.”

Much will depend on whether the court views Musengezi’s case as a lawsuit against Mnangagwa in his personal or official capacity. If personal refers to things done or omitted outside official duties as national president, it is arguable that matters to do with his role in Zanu PF fall in the personal realm. But it is important to note that presidential immunity is not absolute, which is why a sitting president can still be sued in his personal capacity in a presidential petition[1].

However, the question of presidential immunity does not need to detain us at length because it is not central to the legal proceedings brought by Musengezi against Zanu PF for violating its constitution. Assuming the court recognises and upholds Mnangagwa’s immunity defence, it will have no impact on the central party to the action, which is Zanu PF. It is Zanu PF that Musengezi is suing, and Zanu PF does not have a claim to presidential immunity. It is axiomatic that an organisation that has a constitution has a distinct legal personality that separates it from its leaders and members.

That is why in terms of its constitution, Zanu PF can sue or be sued in its capacity as a legal person. Presidential immunity is not transmitted by proximity, therefore, even if the court were to uphold Mnangagwa’s immunity, it has no impact whatsoever on Zanu PF and the other individuals who are being sued by Musengezi. They must have their day in court because they are separate legal persons. It is improper to conflate the national presidency with the party. If it were the other way round, Mnangagwa would not enjoy immunity because he would not be facing legal action in his personal capacity.

If anything, it is in Mnangagwa’s interests to be cited so that he can make representations in a matter whose outcome might affect him. It would have been odd, if not outrightly unfair, to omit him from the proceedings when the issues have a direct impact on Mnangagwa’s rights and interests. Pleading immunity may let him off the case, but it deprives him of the opportunity that Musengezi had offered him to make representations to safeguard his rights and interests. As it is, if his plea of immunity is upheld, Mnangagwa may be dropped from the proceedings but that on its own will not stop the proceedings against Zanu PF and other officers. The court will have to find another ground to dismiss Musengezi’s case against these parties. In a nutshell, the defence of presidential immunity does not save Zanu PF and its other officers from Musengezi’s legal proceedings.

Exhaustion of internal remedies

Mnangagwa and Zanu PF argue 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 organisation 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 seemed to have sealed the plea of exhaustion of internal remedies. However, the courts made an about-turn in the case of Mashavira v MDC-T and others in 2019 and 2020.

In that case, the MDC-T pleaded the same technical defence that Mashavira had not exhausted the party’s internal remedies before approaching the courts. If the High Court had followed the Bhasikiti precedent, Mashavira’s case would have been thrown out at the preliminary stage. However, the court reasoned that Mashavira could not be regarded as having failed to exhaust internal remedies in a situation where his prospects of getting redress were severely curtailed. In other words, a system that is skewed against an individual cannot be regarded as presenting any remedies at all.

The High Court judge’s view was affirmed by the Supreme Court. Justice Patel who wrote the leading judgment stated that “There was no point in invoking domestic remedies that had been both politically and practically undermined”. The judges reasoned that the domestic remedies had been undermined by the fact that the person who was being challenged had taken effective charge and control of the party leadership and hierarchy. According to the judge, this control meant that Mashavira “would not have found any comfort in pursuing the internal remedy theoretically availed under Article 14 of the Party constitution”[2]

It is impossible to imagine how Musengezi’s position can be regarded as being any different from Mashavira’s in the above case. If the court found that Chamisa had taken effective control of the MDC-t and that this had “politically and practically undermined” the existing domestic remedies, how could the same court not recognize that Mnangagwa has taken effective control of Zanu PF and that this has “politically and practically undermined” the existing domestic remedies?

The courts may try to wriggle out of it by making spurious distinctions from the Mashavira case, but this will only expose systemic hypocrisy and bias. It will confirm suspicions of those who fear that when it comes to matters that have a political flavour, courts apply different rules to Zanu PF and the MDC, with greater softness and leniency towards Zanu PF. The judges tied themselves in knots in the Mashavira case when they ignored the Bhasikiti precedent and intervened where they should have exercised more caution. But having made their bed with the Mashavira precedent, they must now sleep in it. The reasoning they applied for the intervention where domestic remedies had not been exhausted in the Mashavira case applies with equal, if not greater force in the Musengezi case. It would be hypocritical to deny Musengezi his day in court because he has not exhausted internal remedies in Zanu PF, when they found favour for Mashavira.

The mootness of the matter

Mnangagwa and Zanu PF also want Musengezi’s matter dismissed because, they argue, the issues it raises are now moot. In other words, there is no longer a live dispute and issues are now only of academic interest and there is no point for the court to raise them. However, in the Mashavira case, the Supreme Court dismissed the argument that the matter was moot, reasoning that mootness is not an absolute bar to the justiciability of a matter. “The court retains 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”.

Justice Patel agreed that Nelson Chamisa and his allies were “in de facto and effective control” of the MDC adding that there was “nothing to suggest that the situation will not continue for some time or that the [Chamisa] is likely to be eclipsed and supplanted as the leader of the [MDC] in the foreseeable future. While the Court cannot with any accuracy predict the future political path of the Party, we certainly cannot totally disregard the political realities on the ground”. This analysis led Justice Patel to conclude that the matter was moot[3]. This would have led to the dismissal of Mashavira’s case. But Justice Patel was not done yet. The finding of mootness was not the end of the matter, the judge wrote before listing reasons to justify making a definitive judgment on a moot case.

The first reason to ignore the mootness of the matter was the status of the party and its potential to be the ruling party. He reasoned that given the performance of the MDC in the 2018 general elections meant that it was a significant player in the country’s politics. Secondly, the judge referred to the party’s constitutional values as a social democratic party and reasoned that it was important to uphold party members’ rights to a constitutionally elected leadership. Having found that the constitution had been grossly violated, the court believed it was necessary to take corrective measures[4]. The judge even referred to the values and principles in the national constitution to justify intervention in a matter that he had found to be moot.

It is worth quoting in full the reason why Justice Patel believed it was necessary to make a definitive judgment in a moot matter. “In the final analysis, 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.”

Four points need emphasis here:

  • First, the judge’s approach in the Mashavira case was not just of interest to the MDC, but to “the governance of political parties generally”. In this regard, Musengezi is dutifully responding to the judiciary’s clarion call. If this reasoning applies to Mashavira’s case, there is no reason why it should not apply to the Musengezi case unless the court applies double standards.
  • Second, Justice Patel thought it was vital for the MDC leadership to be “constitutionally and lawfully ensconced” considering its status in society as the largest opposition party. With the potential to be the ruling party. If this reasoning applies to an opposition party, it goes without saying that it must apply to the ruling party.
  • Third, the judge said although the matter was water under the bridge, it was necessary to reconstruct the bridge. Again, by parity of reasoning, if that bridge was so important in the opposition party, it must be even more important in the ruling party.
  • Finally, Justice Patel concluded that although the matter was moot, it was “imperative” to make an “authoritative determination” in the “interests of justice”. It is impossible to imagine how if the interests of justice mattered so much in the Mashavira case, they cannot matter even more in the Musengezi case where the governing party is concerned.

To conclude this part, it would be hypocrisy of epic proportions if the court were to dismiss Musengezi’s case on the ground that the matter is now moot. It is only proper that similar matters be dealt with similarly. Mashavira’s case was against a political party in which he had an interest and he was challenging the lack of compliance with the party’s constitution in the succession process. Musengezi’s case is similarly against a political party in which he has an interest, and he is challenging the lack of compliance with the party’s constitution in the succession process. Even allowing the use of presidential immunity to shield President Mnangagwa from the lawsuit, both cases are primarily against political parties. They are sued because at law, they have a legal personality that separates them from members and the leadership.

Mnangagwa and Zanu PF would like Musengezi’s matter to be dismissed on technical grounds so that the courts do not have to hear arguments on the merits. In other words, they prefer Musengezi’s case to be thrown out so that they do not have to defend and justify the way the party handled Mnangagwa’s succession in 2017.

Locus standi

One point that Mnangagwa and Zanu PF have raised is that Musengezi is not a member of Zanu PF, therefore he lacks the locus standi (legal standing) to make the legal challenge. That is a question of fact that will depend on the weight of evidence before the court. Musengezi must prove that he is a member of Zanu PF, and it is up to Zanu PF to disprove his membership. In any event, Musengezi must demonstrate that he has sufficient interest in the matter.

It is worth pointing out that the Supreme Court suggested a less rigid approach to matters of locus standi in matters of this kind. “… where a political party bedeviled by a leadership wrangle is involved, it may be necessary to adopt a less rigid approach to questions of locus standi and authority to depose. The principal mischief that is to be guarded against is to avoid the situation where the organization in question is litigated for by an unauthorized person without its specific sanction,” wrote Justice Patel in the case of MDC and Ors v Mashavira and Ors (2020) (which is generally referred to as the Mashavira case). While he was referring to representatives of political parties, it is only fair that the same non-rigid and flexible approach must be extended to the other side.

Litigating by correspondence

This week, lawyers representing Mnangagwa, Zanu PF, and other officers wrote a charged letter to lawyers representing Musengezi. They were demanding a withdrawal of Musengezi’s application. The tone of the letter was uncharacteristically intemperate. It included a threat that if the matter proceeded, they would be seeking costs de bonis propriis which is a fancy term for “out of one’s pocket”. In legal circles, this means the lawyer is being ordered to pay the legal costs in their personal capacity. Mnangagwa’s are therefore threatening Musengezi’s lawyers that they will seek an order that they pay the legal costs.

This is a serious charge against fellow professionals. Litigation is adversarial but lawyers generally observe professional cordiality, respect, and mutual toleration. This usually surprises litigants when they see their lawyers exchanging kind words and pleasantries outside court. A threat to push for costs de bonis propriis is therefore not a light matter. In the circumstances of a politically charged matter, the other lawyers might see it not just as disrespectful but also as intimidation.

There are situations where it might be said that a litigant is wasting the court’s time and pursuing a case without merit. Even so, it is totally against the letter and spirit of the national constitution which guarantees the right to a fair hearing, the right to administrative justice, and the right to be represented by a lawyer of your choice to erect walls that discourage citizens from litigating and lawyers from representing them. There is also no need to litigate by correspondence. Any arguments, technical or on merit must be left to the courts to determine.

Viewed in the context of the Supreme Court’s decision in the Mashavira case, which bears a strong resemblance, it is hard to imagine how the Musengezi case can be regarded as frivolous, spurious, and without merit to warrant a threat of imposing personal costs on the lawyers. The Supreme Court found the Mashavira case to be moot but still went on to give a determination. If it was good enough to apply to the MDC, it must be good enough for Zanu PF. The rules of the game must not change because Zanu PF is in the ring.

It is difficult to imagine what might have motivated Mnangagwa’s and Zanu PF’s lawyers to adopt such an emotionally charged and indecorous approach to fellow professionals. But it is the wisdom of the ancestors that when a blind man invites another person to a stone-throwing contest, it is probably because he has his foot on a stone.

I said as I began this article that this is a David against Goliath affair. But that was probably a fair contest. Musengezi faces a mammoth task, far greater than David’s because of the effects of Constitutional Amendment (No. 2) on the judiciary. Ultimately, he faces an opponent who gave a life-jacket to Zimbabwe’s ultimate judge when he was sinking into the deep and murky waters of retirement. Still, the judiciary must admire the fact that the young man trusts it to play a referee, even as the officious bystander has his doubts.

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 seemed to have sealed the plea of exhaustion of internal remedies. However, the courts made an about-turn in the case of Mashavira v MDC-T and others in 2019 and 2020.

In that case, the MDC-T pleaded the same technical defence that Mashavira had not exhausted the party’s internal remedies before approaching the courts. If the High Court had followed the Bhasikiti precedent, Mashavira’s case would have been thrown out at the preliminary stage. However, the court reasoned that Mashavira could not be regarded as having failed to exhaust internal remedies in a situation where his prospects of getting redress were severely curtailed. In other words, a system that is skewed against an individual cannot be regarded as presenting any remedies at all.

The High Court judge’s view was affirmed by the Supreme Court. Justice Patel, who wrote the leading judgment, stated that: “There was no point in invoking domestic remedies that had been both politically and practically undermined”. The judges reasoned that the domestic remedies had been undermined by the fact that the person who was being challenged had taken effective charge and control of the party leadership and hierarchy. According to the judge, this control meant that Mashavira “would not have found any comfort in pursuing the internal remedy theoretically availed under Article 14 of the party constitution”[2]

It is impossible to imagine how Musengezi’s position can be regarded as being any different from Mashavira’s in the above case. If the court found that Chamisa had taken effective control of the MDC-T and that this had “politically and practically undermined” the existing domestic remedies, how could the same court not recognise that Mnangagwa has taken effective control of Zanu PF and that this has “politically and practically undermined” the existing domestic remedies?

The courts may try to wriggle out of it by making spurious distinctions from the Mashavira case, but this will only expose systemic hypocrisy and bias. It will confirm suspicions of those who fear that when it comes to matters that have a political flavour, courts apply different rules to Zanu PF and the MDC, with greater softness and leniency towards Zanu PF. The judges tied themselves in knots in the Mashavira case when they ignored the Bhasikiti precedent and intervened where they should have exercised more caution. But having made their bed with the Mashavira precedent, they must now sleep in it.

The reasoning they applied for the intervention where domestic remedies had not been exhausted in the Mashavira case applies with equal, if not greater force in the Musengezi case. It would be hypocritical to deny Musengezi his day in court because he has not exhausted internal remedies in Zanu PF, when they found favour for Mashavira.

The mootness of the matter

Mnangagwa and Zanu PF also want Musengezi’s matter dismissed because, they argue, the issues it raises are now moot. In other words, there is no longer a live dispute and issues are now only of academic interest and there is no point for the court to raise them. However, in the Mashavira case, the Supreme Court dismissed the argument that the matter was moot, reasoning that mootness is not an absolute bar to the justiciability of a matter. “The court retains 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”.

Justice Patel agreed that Nelson Chamisa and his allies were “in de facto and effective control” of the MDC adding that there was “nothing to suggest that the situation will not continue for sometime or that [Chamisa] is likely to be eclipsed and supplanted as the leader of the [MDC] in the foreseeable future. While the Court cannot with any accuracy predict the future political path of the party, we certainly cannot totally disregard the political realities on the ground”. This analysis led Justice Patel to conclude that the matter was moot[3]. This would have led to the dismissal of Mashavira’s case. But Justice Patel was not done yet. The finding of mootness was not the end of the matter, the judge wrote before listing reasons to justify making a definitive judgment on a moot case.

The first reason to ignore the mootness of the matter was the status of the party and its potential to be the ruling party. He reasoned that the performance of the MDC in the 2018 general elections meant that it was a significant player in the country’s politics. Secondly, the judge referred to the party’s constitutional values as a social democratic party and reasoned that it was important to uphold party members’ rights to a constitutionally-elected leadership. Having found that the Constitution had been grossly violated, the court believed it was necessary to take corrective measures[4]. The judge even referred to the values and principles in the national Constitution to justify intervention in a matter that he had found to be moot.

It is worth quoting in full the reason why Justice Patel believed it was necessary to make a definitive judgment in a moot matter. “In the final analysis, 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.”

Four points need emphasis here:

  • First, the judge’s approach in the Mashavira case was not just of interest to the MDC, but to “the governance of political parties generally”. In this regard, Musengezi is dutifully responding to the Judiciary’s clarion call. If this reasoning applies to Mashavira’s case, there is no reason why it should not apply to Musengezi case unless the court applies double standards.
  • Second, Justice Patel thought it was vital for the MDC leadership to be “constitutionally and lawfully ensconced” considering its status in society as the largest opposition party. With the potential to be the ruling party. If this reasoning applies to an opposition party, it goes without saying that it must apply to the ruling party.
  • Third, the judge said although the matter was water under the bridge, it was necessary to reconstruct the bridge. Again, by parity of reasoning, if that bridge was so important in the opposition party, it must be even more important in the ruling party.
  • Finally, Justice Patel concluded that although the matter was moot, it was “imperative” to make an “authoritative determination” in the “interests of justice”. It is impossible to imagine how if the interests of justice mattered so much in the Mashavira case, they cannot matter even more in the Musengezi case where the governing party is concerned.

To conclude this part, it would be hypocrisy of epic proportions if the court were to dismiss Musengezi’s case on the ground that the matter is now moot. It is only proper that similar matters be dealt with similarly. Mashavira’s case was against a political party in which he had an interest and he was challenging the lack of compliance with the party’s constitution in the succession process. Musengezi’s case is similarly against a political party in which he has an interest, and he is challenging the lack of compliance with the party’s constitution in the succession process. Even allowing the use of presidential immunity to shield President Mnangagwa from the lawsuit, both cases are primarily against political parties. They are sued because at law, they have a legal personality that separates them from members and the leadership.

Mnangagwa and Zanu PF would like Musengezi’s matter to be dismissed on technical grounds so that the courts do not have to hear arguments on the merits. In other words, they prefer Musengezi’s case to be thrown out so that they do not have to defend and justify the way the party handled Mnangagwa’s succession in 2017.

Locus standi

One point that Mnangagwa and Zanu PF have raised is that Musengezi is not a member of Zanu PF, therefore, he lacks the locus standi (legal standing) to make the legal challenge. That is a question of fact that will depend on the weight of evidence before the court. Musengezi must prove that he is a member of Zanu PF, and it is up to Zanu PF to disprove his membership. In any event, Musengezi must demonstrate that he has sufficient interest in the matter.

It is worth pointing out that the Supreme Court suggested a less rigid approach to matters of locus standi in matters of this kind. “… where a political party bedevilled by a leadership wrangle is involved, it may be necessary to adopt a less rigid approach to questions of locus standi and authority to depose. The principal mischief that is to be guarded against is to avoid a situation where the organisation in question is litigated for by an unauthorised person without its specific sanction,” wrote Justice Patel in the case of MDC and Ors v Mashavira and Ors (2020) (which is generally referred to as the Mashavira case). While he was referring to representatives of political parties, it is only fair that the same non-rigid and flexible approach be extended to the other side.

Litigating by correspondence

This week, lawyers representing Mnangagwa, Zanu PF and other officers wrote a charged letter to lawyers representing Musengezi. They were demanding withdrawal of Musengezi’s application. The tone of the letter was uncharacteristically intemperate. It included a threat that if the matter proceeded, they would be seeking costs de bonis propriis which is a fancy term for “out of one’s pocket”. In legal circles, this means the lawyer is being ordered to pay the legal costs in their personal capacity. Mnangagwa’s lawyers are, therefore, threatening Musengezi’s lawyers that they will seek an order that they pay the legal costs.

This is a serious charge against fellow professionals. Litigation is adversarial but lawyers generally observe professional cordiality, respect, and mutual toleration. This usually surprises litigants when they see their lawyers exchanging kind words and pleasantries outside court. A threat to push for costs de bonis propriis is, therefore, not a light matter. In the circumstances of a politically-charged matter, the other lawyers might see it not just as disrespectful but also as intimidation.

There are situations where it might be said that a litigant is wasting the court’s time and pursuing a case without merit. Even so, it is totally against the letter and spirit of the national Constitution which guarantees the right to a fair hearing, the right to administrative justice, and the right to be represented by a lawyer of your choice to erect walls that discourage citizens from litigating and lawyers from representing them. There is also no need to litigate by correspondence. Any arguments, technical or on merit must be left to the courts to determine.

Viewed in the context of the Supreme Court’s decision in the Mashavira case, which bears a strong resemblance, it is hard to imagine how the Musengezi case can be regarded as frivolous, spurious, and without merit to warrant a threat of imposing personal costs on the lawyers. The Supreme Court found the Mashavira case to be moot but still went on to give a determination. If it was good enough to apply to the MDC, it must be good enough for Zanu PF. The rules of the game must not change because Zanu PF is in the ring.

It is difficult to imagine what might have motivated Mnangagwa’s and Zanu PF’s lawyers to adopt such an emotionally-charged and indecorous approach to fellow professionals. But it is the wisdom of the ancestors that when a blind man invites another person to a stone-throwing contest, it is probably because he has his foot on a stone.

I said as I began this article that this is a David against Goliath affair. But that is probably a fair contest. Musengezi faces a mammoth task, far greater than David’s because of the effects of Constitutional Amendment (No 2) on the Judiciary. Ultimately, he faces an opponent who gave a life-jacket to Zimbabwe’s ultimate judge when he was sinking into the deep and murky waters of retirement.

Still, the Judiciary must admire the fact that the young man trusts it to play a referee, even as the officious bystander has his doubts.

  • Alex T Magaisa is a lawyer, lecturer in the United Kingdom, Zimbabwean political strategist and blogger.

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Tamil Nadu political leaders condole death of Rosaiah – Times of India

CHENNAI: Chief minister M K Stalin, AIADMK coordinator O Panneerselvam and joint coordinator Edappadi K Palaniswami, AMMK leader T T V Dhinakaran and V K Sasikala condoled the death of former Tamil Nadu governor K Rosaiah. He was 88.
The former chief minister of Andhra Pradesh became the 23rd governor of Tamil Nadu on August 31, 2011 and went to serve the state until September 1, 2016. AIADMK-led by J Jayalalithaa was in power during his entire term.
Stalin said he was pained to hear about the demise of Rosaiah, a man of vast experience, knowledge and a veteran statesman. “I offer my deepest condolences to his family and friends in this hour of grief,” he tweeted.
In a statement, Panneerselvam and Palaniswami expressed grief over the death of the former governor, who discharged his duty in a dignified manner.
“He had a lot of respect for Amma (Jayalalithaa). His death is an irreplaceable loss to Indian politics,” the leaders said, while conveying condolences to the bereaved family.
Dhinakaran said that Rosaiah was MLA, MLC, MP, minister, chief minister and governor over his long political career.
Sasikala, the former close-aide of Jayalalithaa, hailed Rosaiah’s efficiency, simplicity and gentleness in treating everyone equally, irrespective of political leanings. “He saw Amma as his own daughter and was very affectionate towards her. He remained supportive to all her efforts for the growth of Tamil Nadu,” Sasikala said.

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OBITUARY: The Douglas Tawanda Munatsi I knew – Trevor Ncube – NewsDay

By Trevor Ncube
Douglas Tawanda Munatsi was a remarkable human being. It is difficult, almost impossible to write about him in the past tense.

Because Doug filled every room he walked into with so much life. In this tribute, because it is more than just an obituary, I would like to reflect on aspects of the Doug I knew, from the personal to the professional and the public.

I knew Doug for over 30 years. He grew to become more than just a dear friend, he was my brother. I am godfather to his eldest son. He and his wife Bindzile are godparents to our daughter Maya. Our families shared many unforgettable moments over the years. Even as we mourn Doug’s passing, we are comforted by these moments. We will always cherish the joy he brought into our lives.

“Mzukulezi how are you and Allbody? You are always in my prayers” was one of Doug’s many ways of greeting me and checking on my family. He was my “Sekuru” because he was Nzou, my late mother being Ndlovu. I will miss Doug on so many levels.

Doug and l joined the Wingate Golf Club at about the same time. We had lots of fun on the golf course. We would go on to take our shared passion for golf to many courses around the world. A round of golf takes quite a few hours to complete, and Doug was the best companion to share that time with.

He had a great sense of humour. Not only did he have us all in stitches with his mischievous anecdotes, he would be reduced to tears as he laughed at his own funny stories. Like all the great conversationalists, many of Doug’s stories had a great shelf life. He retold some of them so many times over the past 30 years, yet their punchlines never lost their sting.

One of Doug’s favourite jokes was about my putting routine. He would demonstrate just how long I stood over the golf ball before putting – each time he would laugh uproariously. Another favourite of his was the day Muchadeyi Masunda had a complete sense of humour failure when I accidentally walked over his putting line.

There was also the time when my caddy told me off for shanking my shot. What we didn’t know at the time was that my caddy had placed a bet on the game and had backed me to beat Doug. My caddy wasn’t just berating me for my weak shot but was actually upset because I had cost him money. Doug’s personality was so much larger than life that I cannot believe that we will never see or talk to him again. It is all so surreal.

More than a source of laughter, he was a pillar of support. When my mother died in July Doug flew down to Bulawayo to attend the funeral and mourn with us. He was one of the 30 people allowed to be at the graveside under the tight Covid protocols during the devastating third wave. He was that kind of friend who stood by his friends in good and bad times. He was generous and kind.

Our families had a tradition of Friday quality time that spilled over into the following day. Our last time together was for a dinner to celebrate Doug and Bindzile’s  30th wedding anniversary at Wombles in Harare. Time spent with Doug and Bindzile was intellectually stimulating and a nourishment to the soul.

He was consistent. The same values he lived by as a friend and a family man governed his business dealings. Doug was a hard worker, principled and professional – virtues that made him a positive role model to many young people. In Doug they saw somebody whose significant wealth could be traced to the hard work he had put in, and the tangible businesses he had built from the ground up.

As Managing Director of First Merchant Bank he was instrumental in the bank financing my acquisition of 100% control of ZimInd Publishers when my partners Clive Murphy and Clive Wilson disinvested. He also supported my acquisition of the Mail & Guardian in South Africa. He took a lot of flak in Zanu PF circles for supporting me.

I am angry. I am hurting. Doug elected to answer the call to serve his country and temporarily abandon his comfortable life. He did not need the job as the first Chief Executive Officer of the newly constituted Zimbabwe Investment and Development Agency (ZIDA). What a thank you to a patriotic citizen. After this how many will answer the call to serve when the message is that the price for principled leadership is life itself.

As l write this Doug’s funeral has been postponed to allow for further investigations into the circumstances surrounding his death. I hope that the investigation will be a thorough and impartial one, conducted by those committed to justice.

I am aware that Doug faced resistance from those opposed to an ethical management style. In my conversations with him, Doug said he wasn’t afraid of those who wanted a corrupt ZIDA. When I said if they failed to compromise him, they would come for him, he responded “then they don’t know me Mzukuru” and dismissed the matter.

Doug did not deserve to die the way he did. From what we’ve garnered so far it appears as if Doug died a most horrific death. The circumstances of Doug’s death are disturbingly similar to those of General Solomon Mujuru.

Difficult to understand like the death of Charles Kuwaza, former chair of the State Procurement board. Difficult to understand like the death of Edward Chindori-Chininga former Minister of Mines and Mining Development.

My prayer is that we get to know what actually happened to Doug early on the morning of Monday the 29th of November 2021, inside his penthouse in Harare. I am hoping that if Doug was murdered his death draws the line in the sand to this impunity. We must bring to an end the assassination and murder of citizens and the failure to investigate and bring to book the perpetrators of these barbaric crimes.

Bindzile and the boys have lost a loving husband and father. Many of us have lost a great friend while Zimbabwe has lost a patriot who was going to positively impact the future of this country through ZIDA. The circumstances of Doug’s death speak volumes about the society that we have become.

The greatest tribute to Doug’s inspirational life is a speedy investigation of how he died. If his death was a hit, as l believe strongly, the culprits must be brought to book. That is our debt to this patriotic and selfless Zimbabwean.

Doug loved God. He attributed his success from very humble beginnings to the Grace of God. In his wife Bindzile he had a praying warrior. They raised their three amazing boys in the presence of God. His love for his wife and family was an inspiration. His legacy will be felt for a long time across not only Zimbabwe but also in South Africa, Botswana and indeed the whole continent.

You have done your bit Doug. Go well till we meet again.

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Politics

America and China opened the door for African coups to return – Aljazeera.com

The most recent coup in Sudan has been modified – not undone – by General Abdel Fattah al-Burhan’s reappointment of deposed civilian Prime Minister Abdalla Hamdok.

The coup, which had been widely rumoured in Sudan but still managed to blindside the United States, remains a source of outrage for Sudanese citizens. But Washington is yet to take a clear stance on the issue.

The reaction from American diplomats, who have signalled acceptance of the new arrangement and willingness to turn a blind eye to the continued military dominance of the transition government, has diverged widely from that of Sudanese citizens, who continue to reject military hegemony.

This case highlights the breakdown of the anti-coup coalition that had formed for Africa – a breakdown that has led to military interventions reemerging as a leading method by which power is transferred on the continent.

After decolonisation, competitive elections remained rare for decades in Africa, while military coups emerged as the leading method by which power changed hands. But around the turn of the century, multiparty elections became the norm within African states, while coups were relegated to rare and generally short-lived breakdowns of constitutional order.

This dramatic change, coming in the aftermath of the Cold War, was brought about by a convergence of domestic and international actors. Local populations, fed up with dictatorial and military rule and hopeful for the promises of democracy, forced autocrats and military regimes to step aside. The Organisation of African Unity (OAU) went from being a notorious “dictator’s club” to enforcing democracy and constitutionalism as requirements for sustained membership in the continent’s main political body. Meanwhile, with the fall of the Soviet Union, the United States and other Western powers recommitted themselves to upholding democracy. African strongmen and juntas were left without international backers, leading to widespread, though far from complete, democratisation across the continent.

For a while, the anti-coup consensus held. As popular pro-democracy activism persisted, African militaries were pushed back into the barracks and autocrats were shoved out of office. Coup attempts plummeted, and the military leaders that did seize power, as in Niger in 2010 or Mali in 2012, were swiftly removed in the face of united African, Western and broader international condemnation.

The legacy of these transitions remains in the endurance of competitive multiparty politics in formerly coup-plagued countries such as Ghana and Nigeria. But as coups make a comeback in Africa – with the Wall Street Journal newspaper noting that military takeovers have returned this year to their highest level in 40 years  – it is becoming evident that there is a growing division in the anti-coup coalition that helped democracy emerge in Africa.

Local populations have upheld their end of the bargain, as have regional blocs like the African Union (AU), the successor organisation to the OAU. But the international environment has returned to one that is at best permissive of military takeovers, and at worst actively welcomes them as expedient ways to remove threatening or odious leaders. Backsliding on the part of Western powers, and the rise of autocrat-friendly China, have created an atmosphere that emboldens generals and military cliques to seize power.

A decade ago, the Arab Spring brought the democratisation wave to North Africa, toppling the long-serving dictators of Tunisia, Libya and Egypt. Yet, it was the aftermath of Egypt’s transition that began to break down the international consensus against coups in Africa. When the democratically elected government of Mohamed Morsi was overthrown in 2013, the AU quickly condemned the coup. The US and other Western powers, however, prevaricated, concerned about the undemocratic change of power but happy to see Morsi go. The American government publicly declined to call the overthrow a coup, and soon General-turned-President Abdel Fattah el-Sisi found himself in the good graces of the US, while also cosying up to autocratic powers like Saudi Arabia and China.

The crack in the anti-coup coalition created for Egypt in 2013 grew into a chasm four years later, when President Robert Mugabe of Zimbabwe was pushed out of power by his military amid an internal power struggle within his ruling ZANU-PF party. At the time, there was near-unanimity of opinion that Mugabe’s nearly 40-year reign should end. He was pushed out by his former allies, with rumoured support from China, where coup leader Constantine Chiwenga, the commander of the Zimbabwean military, had visited just before returning to Zimbabwe to remove Mugabe. The move was met with relief from Western governments that had long grown tired of Mugabe and approval from Zimbabweans, most of whom had lived their entire lives under Mugabe’s rule.

Still, the AU condemned the military stepping in to remove Mugabe, and Zimbabwean opposition parties and civil society groups warned that the army’s chosen replacement, ZANU-PF stalwart Emmerson Mnangagwa, would be just as oppressive as his predecessor. But the US and other Western nations were happy to pretend that Mugabe’s “resignation” was valid and not made at the point of a gun barrel, and the West quickly accepted the hasty election thrown together to legitimise Mnangagwa.

The ZANU-PF government has maintained its “look East policy,” remaining cosy with China – despite local Zimbabwean anger at Chinese economic exploitation of Zimbabwe’s mineral resources. Pessimistic local predictions about Mnangagwa’s rule have proven true – ZANU-PF remains as oppressive as ever – but the new leader remains propped up by the air of legitimacy granted him by the international community.

Which brings us to today. Sudan’s General Burhan likely had the examples of Egypt and Zimbabwe in mind when he planned the coup, calculating that he could take power and gain the acquiescence of chief powers like the US, which remains willing to replace the pariah al-Bashir with a similarly repressive but less notorious military-dominated alternative, and China, which is happy to work with whatever government brings stability to a longtime economic partner.

Meanwhile, activists, politicians, and citizens continue to risk their lives to fight for true, civilian-led democracy in Sudan (and Egypt and Zimbabwe, for that matter). But the fight for democracy and against military rule in Africa has seen significant setbacks. This year alone, coups have overthrown existing governments or undemocratically installed new leaders in Chad, Mali, and Guinea, in addition to Sudan. While African populations remain overwhelmingly committed to democracy and opposed to military governments, the lack of reliable international pro-democracy partners makes the struggle against military rule much more difficult. But as the sustained anti-military protests in Sudan demonstrate, local populations are willing to continue the fight for democracy, even if they must go it alone.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.

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