ZANU PF member Sybeth Musengezi, also a local businessman and economist, says he has a strong case against the ruling party which installed President Emmerson Mnangagwa at its helm unconstitutionally and unlawfully, making him a creature of illegalities.
In his answering affidavit, in High Court Case Number. HC 5687/21, Musengezi comes out guns blazing against Zanu PF (first respondent), Mnangagwa (second), Obert Mpofu (third) and Patrick Chinamasa (fourth).
The fifth respondent is former vice-president Phelekezela Mphoko and the sixth is ex-Zanu PF secretary for administration Ignatius Chombo. Zanu PF and Mnangagwa are represented by Edwin Manikai of Dube, Manikai and Hwacha, while Musengezi’s counsel is Bulawayo-based Ncube Attorneys, whose correspondent law firm in Harare is Mbidzo, Muchadehama and Makoni.
In a devastating answering affidavit, Musengezi seeks to crush all the issues raised by Manikai for Zanu PF and Mnangagwa, as well as others. He says to begin with the opposing affidavit filed by Manikai for Zanu PF and its officials, particularly Mpofu, was done without an exhibit of the ruling party’s resolution or permission for them to do so, as the party is supposed to be represented in litigation by its secretary for legal affairs — Paul Mangwana — in terms of article 9, section 55(3) of its constitution.
Musengezi notes Mpofu, secretary for administration, merely claimed to be representing the party without producing evidence. As a result, he says Zanu PF has not properly filed its notice of opposition and opposing affidavit, meaning it is legally out of court.
Musengezi further says Mnangagwa and Chinamasa have also not filed their notices of opposition and opposing affidavits, but instead submitted supporting affidavits to Mpofu’s papers. In other words, they refrained from opposing his case against themselves and are content with merely backing Mpofu in court.
Musengezi, put differently, says the party against whom substantive relief is sought — Zanu PF — has not opposed the application, even though Mpofu purports to be representing it without an exhibit to that effect. Mnangagwa is cited as an interested party or beneficiary of Zanu PF’s illegal activities, he avers.
On another note, Musengezi says Mpofu, with Mnangagwa and Chinamasa’s support, impermissibly pleads law, violating the trite rule that one does not plead the law, but facts only. He thus demands Mpofu’s pleadings of the law should be expunged from the official court record.
Musengezi also says he has sued Mnangagwa in his official capacity as the president and first secretary of Zanu PF, not as state President.
“Applicant is alive to the distinction between the office of the President of the Republic of Zimbabwe and the President of the Zimbabwe African National Union Patriotic Front (Zanu PF),” Musengezi states.
“To suggest that the applicant is thereby suing the office of the President of the Republic of Zimbabwe is self-servingly misleading.”
He says given this, Mnangagwa cannot plead immunity, as his immunity as state President does not extend to his position as Zanu PF leader.
He adds Mpofu was “purposefully conflating” the two offices for a thinly-disguised and self-serving agenda.
“The constitutional provision relating to presidential immunity is not applicable in the present case,” Musengezi says.
“No relief is being sought against the President of the Republic of Zimbabwe, either in his official or personal capacity in this application. Accordingly, applicant stands by its afore averred averments.”
Musengezi goes further: “To drag the office of the President of the Republic of Zimbabwe into this suit is to obfuscate issues upon which my application is rooted. I restate for the umpteenth time, that no relief is being sought by myself against the President of the Republic of Zimbabwe in his official or personal capacity.
Relief is sought against the 1st respondent, a political association known as the Zimbabwe African National Union Patriotic Front, itself a legal entity founded upon its Constitution. Such institution is capable of suing and being sued in its own standing”.
Addressing Mpofu’s claim, supported by Zanu PF member Goodwills Masimirembwa, that he is not a party member, Musengezi emphatically dismisses the allegation. He says he is a Zanu PF card-carrying member whose POSB statement is linked to the party’s bank account through which he subscribes for his membership for 20 years now.
He attached documents to support that. Musengezi adds that he contested Zanu PF’s 2018 primary elections after being vetted by the Central Intelligence Organisation operatives as the party usually does, which proves beyond reasonable doubt he is a bona fide member. He says he is defending the party’s constitution and its political and ideological values therein.
“I thus have a substantial interest in the affairs of the 1st respondent (Zanu PF) as to bestow locus standi upon myself in relation to the party’s affairs,” Musengezi says. He adds that it was strange for Mpofu and Masimirembwa to claim he is not a party member and yet fail to produce the cell register they cite as evidence.
In any case, they are not the ones who keep the records, but the commissariat department. Mpofu and others also tried to boldly declare Musengezi belonged to former Zanu PF youth leader Godfrey Tsenengamu’s Front for Economic Emancipation in Zimbabwe (Feez) in search of technicalities to get his application dismissed without considering the merits.
He says he associated with Feez while it was still an economic empowerment and anti-corruption platform. When Feez was turned into a party on 31 August 2021, Musengezi says he remained a member of Zanu PF.
He states that he has a legitimate, direct and substantial interest in this case. “I am directly affected by patently illegal decisions that its officials have foisted on it,” he points out. Musengezi argues that having demonstrated his Zanu PF membership and locus standi, he wants to uphold the party constitution and hold those in power accountable.
Zanu PF leaders must uphold their own constitution before they are expected to respect the national constitution, he adds. On the issue of exhausting internal remedies first, Musengezi contends it is irrational for anyone to expect him to get justice from the same party structures he is accusing of acting illegally and causing injustice in the first place, and who are also “tainted with illegalities”.
“Such would amount to judgment of a complaint by the suspect,” he says. The illegalities Musengezi complains about arise from the Zanu PF central committee meeting of 19 November 2017, which he says was unconstitutionally convened, constituted and conducted, as the late former president Robert Mugabe and Mphoko — the only two officials who could have legally called for it — were not there.
“I am advised that illegalities even by operation of prescription do not then become legalities,” he adds.
On time lapse, Musengezi states: “The relief(s) sought are declaratory orders of illegality that cannot be time bound or prescribed for so long as the illegalities complained of are continuing. Thus, the provisions of the Prescription Act herein cited are not applicable in circumstances such as these”.
In any case, there was Covid-19 and the resultant lockdowns, he argues. Musengezi says Zanu PF and Mpofu’s assertions that the matter is now moot is wrong. He says since the party acted ultra vires its constitution in appointing and installing Mnangagwa leader illegally, that legal nullity cannot be overtaken and cured by time, or eventuation of certain events.
“A legal nullity does not become overtaken or cured by passage of time and the eventuation of certain events. My prayers herein are therefore not moot,” he says.
On Zanu PF’s claim that Mnangagwa was still a party member when he was installed by the central committee, Musengezi boldly states: “This is not correct”. He says that is why the central committee had to first restore his membership before appointing him party leader pending approval by the extraordinary congress of 15 December 2017, which was not elective, but about ratification.
Musengezi contends Mnangagwa’s party leadership was “founded on illegality” and “therefore the status quo should be interrupted”.
“Herein lies the 1st respondent (Zanu PF)’s real fear, that is, that all things subsequently built on the basis of illegality must now come tumbling down. But the law, so I am advised, is very clear, that, nothing attaches to an illegality no matter how big or great or important such construction may be,” Musengezi says.
He adds that he has crystallised a clear and solid case against Zanu PF and by extension Mnangagwa, hence his relief sought cannot be incompetent as claimed by Mpofu and others.
“I persist in praying for declaratory orders sought herein for good reason and measure,” he notes. Musengezi argues failure to convene a legal central committee meeting, citing “exigencies of the situation” sowed the seeds of subsequent illegalities.
“That is where the lawlessness crept in,” he says. “To be clear, in terms of the 1st respondent (Zanu PF)’s constitution, the central committee can meet either for the purpose of making new regulations or for the purpose of applying existing regulations. It cannot meet to make new regulations and apply them at that same meeting,” he states.
“The submission of illegality, and therefore of a nullity is well grounded.”
Musengezi adds: “It is alarming to hear that illegalities from start can be rectified or validated later. I submit that, that which is founded on an illegality cannot stand, and further cannot be validated by subsequent events. A nullity, I am advised, is a nullity for all time . . . It started with illegality and ended with it. It was, and still is a nullity . . . All the subsequent built up, was built on a nullity.
“I restate for the umpteenth time, that illegalities do not become moot, and do not cease to hurt. I also submit that illegalities do not prescribe, and that the court should interrupt and stop the illegalities any time they are brought before it. I therefore respectfully submit that this application is neither academic of the mind nor an attempt to address matters that now lie moot.
“Over the years since independence, it is the 1st respondent (Zanu PF) that has provided personnel to govern this country, and it is accordingly, important that a party that governs, itself observes its own constitution before it is expected to respect the broader national constitution. That is how important this matter is.”