The constitutional application by #Tajamuka/Sesijikile Movement leader, Promise Mkwananzi, seeking to challenge President Robert Mugabe’s fitness to hold office, was yesterday dismissed by the Constitutional Court (ConCourt) on the basis that the 92-year-old leader had not been personally served with the papers.
Source: ConCourt rejects ‘Mugabe unfit’ case – NewsDay Zimbabwe February 9, 2017
BY CHARLES LAITON
The ConCourt, led by Deputy Chief Justice Luke Malaba, unanimously agreed to throw out Mkwananzi’s application, saying the matter was not properly before the court “for want of compliance with the court rules”.
Justice Malaba said Mkwananzi ought to have sought legal advice before proceeding to file an application at the ConCourt, “which is a more serious court”.
“When he chose to approach this court, he knew what he was doing. He is not an ignorant individual, but ought to have sought legal advice . . . he jumped into the fray . . . If one sets a course of action he must ensure it must succeed … The ConCourt is a more serious court and litigants must know exactly what they are doing when bringing their matters to this court,” Justice Malaba said.
The judge’s comments came after Mkwananzi’s lawyer, Kudzai Kadzere, said his client had not effected proper service because he had been self-acting.
“Applicant (Mkwananzi) had been a self-actor when the application was filed. There was a mistake in the service, as he indicated that service was effected at the New Government Complex instead of Munhumutapa offices. We, however, concede there was no proper service and in terms of rule 27 the Sherriff, he did not effect service on the day the application was filed,” Kadzere said.
Just before the matter could be heard on merits, Mugabe’s representative, Attorney-General Prince Machaya, raised a preliminary point, urging the court to dismiss the application, arguing his client had not been properly served.
“I raise preliminary points and apply for the dismissal of the matter for want of compliance with Court rule 9(g) of the Constitutional Court, which requires that service be effected upon the President at his place of residence or office. The applicant (Mkwananzi) failed yet again to comply with rule 27 and on the basis of such non-compliance, the application is not properly before the court and should be dismissed with costs,” Machaya said.
“The return of service indicates that service was effected elsewhere and not at the respondent’s place of residence or office.”
The ConCourt was set to decide on whether Mugabe was fit to hold office given his advanced age and violation of the Constitution, as alleged by Mkwananzi.
In his founding affidavit, Mkwananzi said: “He (Mugabe) is old and frail and no longer has the agility and concentration to superintend over critical affairs of the State. His incapacity (to lead) poses a real danger to the stability and security of the country.
He must accept his fate and go to rest.”