Mnangagwa Misguided On Immunity As His Presidency Is Challenged

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.
Page 2 News NewsHawks
Issue 55, 5 November 2021
President Emmerson Mnangagwa
Mnangagwa claims immunity
on being illegal Zanu PF leader
Zanu PF member Sybeth Musengezi
NewsHawks News Page 3
Issue 55, 5 November 2021
ZANU PF Secretary for Administration Obert
Mpofu is behind the illegal seize of a farm belonging