via Panicky Zanu PF pressures judges – DailyNews Live 9 February 2015
HARARE – Legal experts say Zanu PF hawks are using thuggish tactics to frustrate the legal rights of disaffected party stalwarts, including former Presidential Affairs minister Didymus Mutasa, who wants to take President Robert Mugabe’s party to the courts for allegedly trampling intra-party democracy.
This follows ongoing comments by party bigwigs regarding the mooted legal action, which the legal experts say amounts to “naked bullying” of the judiciary so that by the time the lawsuit reaches the bench, the judiciary feels “decidedly pressured”.
Just this past weekend, Patrick Chinamasa (pictured), the Zanu PF secretary for legal affairs, told lickspittle State media that the ruling party would not allow an internal dispute to be taken to the courts by the disaffected members.
Chinamasa, a former minister of Justice, further claimed that no Zimbabwean court had jurisdiction to decide party affairs.
“No court of law has jurisdiction to decide party programmes and who should be in positions. Leaders are elected by party membership not by the courts. Therefore, any attempt to resort to the courts is an exercise in futility because we cannot have outsiders coming to decide who should be in what position.
“Judges cannot be arbiters in issues concerning members. This puts to rest any suggestion that Zanu PF will look at outsiders for adjudication in matters related to disciplinary action against its members. Any suggestion to that notion is nonsense,” Chinamasa told the rabidly pro-Zanu PF Sunday Mail newspaper yesterday.
But legal experts who spoke to the Daily News yesterday disagreed strongly with his views saying Chinamasa, an experienced lawyer himself, knew very well that it was “patently false” to claim that proceedings within political parties were not subject to judicial review.
“It’s not correct to say that political parties’ proceedings are above the law,” said Jessie Majome, a legal expert and opposition lawmaker.
“They are subject to judicial review like everything else for purposes especially for adherence to the principles of natural justice and the constitutional right to just administrative action guaranteed by Section 68 of the Constitution,” she added.
Justice Alfred Mavedzenge, a constitutional law expert, said the question whether judges had the jurisdiction to hear a legal dispute depended on how Mutasa would frame his case.
“In terms of section 165 (1) (c) of the Constitution, judges have a constitutional duty to ‘safeguard human rights and freedoms and the rule of law’.
“What this means is that if Mutasa is able to clearly identify and demonstrate in his founding affidavit that Zanu PF or whoever is the respondent has violated his right, the judges will have sufficient competence to adjudicate such a matter,” Mavedzenge told the Daily News.
He said Mutasa also had an option to base his case on Section 68, which deals with the right to fair administrative justice and which binds institutions such as political parties — especially given that they receive State funding through the Political Parties Finance Act.
“Alternatively, Mutasa may also find his case on the common law right to a fair hearing and principles of natural justice.
“By virtue of Section 47 of the Constitution, the rights listed under the Declaration of Rights are not the only rights recognised by this Constitution but there are other rights given to citizens by common and customary law.
“So on that basis, Mutasa can frame his case on the common law right to fair hearing.
“In addition to that, Mutasa has the option to bring up the rule of law argument, in which case he can argue that the rule of law is a principle that binds everyone in this country, including political parties by virtue of constitutional supremacy.
“Rule of law requires that the law must be applied equally to all. In the case of Mutasa, the law referred to is the Zanu PF party constitution and other rules governing administration within Zanu PF.
Rule of law requires that Zanu PF must apply its constitution to all its members equally,” Mavedzenge said.
He added that Mutasa could demonstrate a prima facie case showing that Zanu PF did not follow its rules and Constitution, and in which event, “there is no reason why the courts must shy away from hearing his matter”.
Obert Gutu, another legal expert and leading opposition figure, told the Daily News that, “Chinamasa’s interpretation of the law is misplaced and clearly erroneous and misleading. The High Court enjoys inherent jurisdiction to entertain any matter brought before it.
“That said, there is also a principle of law that all domestic remedies should be explored to the end before a matter is brought before the courts to be heard. However, this principle is not cast in stone”.
Mugabe has set up a six-member disciplinary committee chaired by Vice President Phelekezela Mphoko to deal with Mutasa’s alleged misdemeanours.
The other members of the committee are Chinamasa; Savior Kasukuwere, political commissar; Kembo Mohadi, secretary for security; Mugabe’s wife Grace, chairperson of the Women’s League; and Pupurai Togarepi of the Youth League.
The mooted hearing comes amid calls by some party hawks such as Oppah Muchinguri-Kashiri and Kasukuwere to have Mutasa summarily expelled from the party altogether.
Gutu said: “Where there are compelling reasons to resort to the High Court before all domestic remedies have been exhausted, the High Court will also entertain the matter without any qualms”.
Mutasa, while saying last week that he was willing to appear before the party’s disciplinary hearing, is nevertheless sceptical of its bona fides, and is moving ahead to challenge Zanu PF’s damp squib “elective” congress that was held in Harare last December, describing it as “null and void”.
He is seeking to nullify all the appointments and decisions that were made by Mugabe at the disputed congress and has written to Sadc leaders asking them to mediate in the ugly ructions within the party.
Mutasa is adamant that the party’s December congress was illegal, and has gone on to implore Mugabe to “listen to the voice of the majority” in the ruling party and ignore the advice of Mafikizolos (Johnny-come-lately), who his group says have hijacked the party and are leading the nonagenarian down the garden path.
He infuriated his erstwhile Zanu PF comrades when he signed a damning statement that his group authored and which was provocatively written in his former capacity as the ruling party’s secretary for administration.
The no-holds-barred statement called for the nullification of all “purported constitutional amendments drafted and rail-roaded immediately before this so-called congress”, as well as the restoration of the “elective dignity of congress and the one-man one-vote principle as enunciated by our armed struggle and constitution”.
The Daily News’ sister paper, the Daily News on Sunday has reported that the Zanu PF stalwarts who are aggrieved by the recent turn of events in the ruling party have now almost completed putting their papers together and that it is now a matter of time before they launch their court action.
“My understanding is that all the papers for the court action are virtually ready and that it is now a question of timing when these will be lodged. It is imminent and this can happen anytime now,” a Zanu PF official who requested anonymity for fear of victimisation said.
Former party spokesperson Rugare Gumbo, who is a member of the disaffected party stalwarts, would only say that the court challenge would proceed soon.
“It’s going to proceed,” he said.
Gumbo also said Mutasa had not yet been served with papers for Zanu PF’s planned disciplinary hearing against him — a fact that has since been confirmed by Mutasa himself.
But doubts still remain whether Mutasa will in fact attend the hearing given that he has also said that he does not recognise the Zanu PF leadership and party constitutional amendments that emerged from the party’s disputed congress.
However, youth leader Togarepi has insisted that Mutasa’s proposed hearing would proceed whether he turned up or not.
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