LAWYERS representing Zanu PF member Sybeth Musengezi, a local businessman and economist challenging President Emmerson Mnangagwa’s ascendancy to power and legitimacy, which he says was unconstitutional and unlawful, making him a creature of illegalities, say police must come out clean on why they are hunting down their client.
Police have been looking for Musengezi since the beginning of the new year after he filed his application challenging how Zanu PF installed Mnangagwa into his current position.
He says the ruling party did not follow its own constitution and procedures, hence Mnangagwa rose to the top unlawfully.
The case has sent shockwaves within Zanu PF ranks and fuelled infighting between Mnangagwa and his deputy Vice-President Constantino Chiwenga who are locked in a battle for the heart and soul of the party ahead of its elective congress in December.
Their raging war of attrition revolving around two main factions has been worsened by recent provincial elections, preceded earlier by district coordinating committee polls last year. In a letter to police dated 7 January 2022, Ncube Attorneys say law enforcers must come out in the open on why they looking for Musengezi and hounding him.
“We represent Mr S Musengezi and please note our professional interests. We have been advised by our client that your officers made a visit to our client’s in-laws in Budiriro, Harare, on 5 January 2022, and indicated they were looking for our client over some undisclosed allegations. The officers were being led by Detective Assistant Inspector Nyazamba,” the letter says.
“Our client is obviously worried about such a visit taking into consideration that there is a pending matter where he has approached the High Court of Zimbabwe over the legitimacy of the incumbent President who doubles as the President of Zanu PF and its 1st secretary.
“It is in light of this background that we are being retained to enquire into the nature of the visit, in particular whether there are any criminal charges, so that we arrange that our Mr (Nqobani) Sithole who is in Bulawayo accompanies our client on a pre-agreed date as to ensure that his legal rights are duly observed in whatever process is intended. From the above, we request that you favour us with information regarding your visit, and that you advise if we need to avail our client, and if so, when and where?”
Ncube Attorneys say Sithole would be available to visit police in Harare with Musengezi at the end of the month. After Musengezi filed his application, Mnangagwa’s lawyers said the President could not be sued because he has immunity.
However, in his answering affidavit, in High Court case number HC 5687/21, Musengezi came 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 the Bulawayo-based Ncube Attorneys, whose correspondent law firm in Harare is Mbidzo, Muchadehama and Makoni. In a devastating answering affidavit, Musengezi sought to crush all the issues raised by Manikai for Zanu PF and Mnangagwa, as well as others.
He said 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 said 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 said 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.
Manikai filed the respondents’ opposing affidavit before turning around and demanding the withdrawal of the case lest the applicant and his lawyers suffer the consequences, in a clear case of litigation by correspondence.
This prompted a complaint by Ncube Attorneys. In a dramatic escalation of tensions over the Mnangagwa legitimacy battle, Ncube Attorneys wrote in a letter dated 18 November 2021 acknowledging receipt of Manikai’s earlier correspondence of 11 November 2021, while simultaneously complaining about DMH’s conduct.
Musengezi’s lawyers then went on to report Manikai to the Law Society of Zimbabwe for “unprofessional” and “unethical” conduct. Musengezi will file his heads of argument next week.