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.