Experts scoff at ex-minister’s court bid

via Experts scoff at ex-minister’s court bid | The Herald January 15, 2015

LEGAL experts yesterday described as non-existent former zanu-pf secretary for Administration Cde Didymus Mutasa’s chances of succeeding in his bid to sue the revolutionary party for allegedly irregularly convening the 6th National People’s Congress in December and nullify its resolutions and appointments. Senior zanu-pf leaders said it was ironic that Cde Mutasa sought to sue over a congress he organised in his capacity as the then secretary for Administration in the pre-Congress Politburo.

Cde Mutasa threatened to take legal action to reverse constitutional amendments that were made allowing President Mugabe to appoint the Politburo and his two deputies, saying the process was flawed.

War veteran Cde Mandi Chimene said it was clear that Cde Mutasa had no case.

“It is sad to note that Cde Mutasa is now saying the 6th National People’s Congress was a non-event, yet he is the one who originated all circulars giving guidelines on whatever preparations were expected from all the provinces,” she said.

“What he is doing are the last kicks of a dying horse as he is in the twilight of his political career. He is now realising that he was incompetent as the secretary for Administration, a reason why he wants to hoodwink the world to sympathise with him. He shot himself in the foot and should not expect us to shed tears for him.”

Zimbabwe National Liberation War Veterans Association secretary-general Cde Victor Matemadanda said Cde Mutasa was actively involved in preparations for the congress and should not question the decisions it made.

He said this while addressing a Press conference in Harare yesterday.

“He is challenging the congress, but he is forgetting that he was organising the Youth Conference, the Women’s Conference and the even the congress itself,” he said.

“He was there on the programme of the congress, but absconded and later said he was in India. The constitution was amended through a voting process that is democratic and that voting process allowed the President to appoint his deputies and that is democratic. When you vote for a person you bestow responsibilities on them just like after an election the President appoints his Cabinet. So the process of amending the constitution was done according to the constitution and that is democratic.”

He said attempts by Cde Mutasa to solicit support from Sadc were futile as the issue was purely a domestic matter concerning a political party, which is a private club.

Leading lawyer and legislator Mr Jonathan Samukange said chances of Cde Mutasa winning in the courts were non-existent.

“There is a difference between suing and winning,” he said. “Any person can sue, but it’s not automatic that they will win. So, if Cde Mutasa says he wants to sue it is his right, but he will not succeed.

“There is no court that can direct operations of a political party, so the court will throw away his application because it’s not merited and has no cause for action. Zanu-PF, just like a private person, has a right to make determinations of its own form.”

Another lawyer Mr Musindo Hungwe said the resolutions made at the Zanu-PF congress were unassailable.

“If one wants to challenge the outcome he must ask three questions – the first one being whether or not any provisions of the Zanu-PF constitution were infringed upon.

“The second one being whether or not all those resolutions passed at the congress could lawfully be passed in terms of the party’s constitution.

“Finally, one should ask whether or not the congress was properly constituted in other words whether or not the delegates who attended the congress could lawfully attend and sit down and deliberate on Zanu-PF business.

“From my own analysis, the answer to all the inquiries is in the affirmative which could make resolutions passed at the congress unassailable and therefore binding on Zanu-PF as a party and the generality of its members.”

Mr Hungwe said if Cde Mutasa was a member of Zanu-PF as he claimed then he was bound by the resolutions.

Another lawyer Mr Terrence Hussein said Cde Mutasa’s decision to absent himself from the congress would complicate his case, adding that the constitutional amendments that were made at the congress were done above board.

“The first question Cde Mutasa would have to answer is why was he not present at the congress?” he said. “The President asked the question (about his whereabouts) and there was no one to answer. If he was not there, he chose to absent himself, so that would be the first difficulty he would face.

“If one looks at the way the congress was convened and the way the constitutional amendments were made, one would not see how he would succeed.”

President Mugabe told delegates during the congress that Cde Mutasa had phoned him saying he was travelling to India with his ailing wife.

The Politburo is the secretariat of the Central Committee, it received and processed all recommended amendments from various organs of the party and forwarded them to the Central Committee which in turn presented them to Congress.

The amendments were presented by the then secretary for legal affairs, Cde Emmerson Mnangagwa, who was constitutionally mandated to do so.

Harare lawyer Mr Chris Mhike said Cde Mutasa faced a number of legal challenges if he eventually decided to proceed with litigation.

He said it was possible that the courts could reject dealing with his matter if they raised issues of jurisdiction.

“The success or otherwise of his claim if he does proceed with litigation would depend on a number of factors including, first, whether or not the court acknowledges jurisdiction over the matter, secondly if jurisdiction is accepted, the weight and veracity of arguments presented by the aggrieved parties,” he said.

“Thirdly, the justification proffered by the litigant as to why he opted for court process instead of internal remedies.”

Former advisor to MDC-T president, Dr Alex Magaisa, who was quoted in some sections of the media yesterday saying Mutasa’s court challenge was sound also came under fire from a South African-based law lecturer who described him as a stranger to the Zimbabwean judiciary.

‘’Alex Magaisa should not just open his mouth whenever a question is put to him. He clearly is not familiar with the Zanu-PF constitution or the Zimbabwean legal system since he has never appeared before a Zimbabwean judge.

‘’The Zanu-PF amendments came from the party’s constitutional organs and did not ooze from some diesel rock from Chinhoyi.’’