PRESIDENT Mnangagwa is not liable to civil or criminal proceedings while he is still in office and the court challenge seeking to annul his ascendency to ZANU PF’s top post in November 2017 is flawed, the party’s Secretary for Administration, Dr Obert Mpofu, has said.
This comes as ZANU PF Harare province acting chairman, Cde Goodwills Masimirembwa, has submitted that Sybeth Musengezi, who applied to the High Court to challenge President Mnangagwa’s ascendency, is not a bona fide member of the party.
Dr Mpofu made the assertions in his founding affidavit in a notice of opposition filed at the High Court on Friday against Musengezi’s application.
In his submissions, Dr Mpofu argued that the High Court has no jurisdiction to try the President as Section 98 of the Constitution guarantees the President immunity.
“The literal import of the Section is very clear. There’s no need for any aids to interpretation of this Section. The import of Section 98 (1) is that whilst in office, the President of Zimbabwe is not liable to any civil or criminal proceedings in any court for things done or omitted to be done in his personal capacity whilst in office. The Section confers immunity to prosecution to a sitting President.”
Dr Mpofu said Musengezi did not seek leave to sue the President as is required by rule 12 (21) of the High Court.
He said the application was defective and cannot be allowed to go ahead as it falls away on filing and should be struck off the roll with costs.
Furthermore, Dr Mpofu said Musengezi had not exhausted domestic remedies which are provided for in ZANU PF’s constitution before bringing the application to court.
On October 20 this year, Musengezi, who described himself as a ZANU PF youth member, approached the Bulawayo High Court seeking the nullification of ZANU PF’s November 19, 2017 special session of the Central Committee meeting which elected President Mnangagwa as the party’s First Secretary and President.
According to the court application, Musengezi, through his lawyer Nqobani Sithole, cited ZANU PF as the first respondent and President Mnangagwa as the second respondent.
In his submissions, Cde Masimirembwa said Musengezi is not in ZANU PF structures.
“I confirm that the Applicant is not a member of the 1st Respondent in good standing. Firstly, he applied to be a member of the 1st Respondent in 2014 in Hatcliffe yet he did not reside there and was using a local address belonging to one Cde Mutimbanyoka’s mother. It must be noted that for one to qualify as a member, they must belong to a cell within their area of residence. The party contends that Applicant has ‘dirty hands’ in respect of his claims to membership,” he said.
Cde Masimirembwa said investigations by the party had discovered that Musengezi had been illegally planted into ZANU PF’s structures by fugitive former national political commissar Saviour Kasukuwere.
“It has currently been discovered that the Applicant is the branch deputy secretary to which no elections were held for branch officials other than the Chairman.
‘‘This means that anything else has not been verified and its origins and authenticity questionable. It’s believed, on investigation by the DCC security that reports to me as Chairman of DCC 4 Harare and also Acting Chairman of the Harare Province, that Applicant was “planted “into the relevant district, without the relevant credentials for political and other reasons by the former Secretary for the Commissariat, Saviour Kasukuwere, to whom he is allegedly related.”
According to Cde Masimirembwa, Musengezi belongs to another political party known as Front for Economic Emancipation in Zimbabwe (FEEZ).
“In June of the same year, he was seen to be a member of another political front by participating in their first press conference. He uploaded a video on his Facebook page wearing FEEZ regalia and denounced and disrespected the 1st Respondent and its First Secretary, the 2nd Respondent in the matter. The video footages are attached . . .” he said.