A critical examination of the Musengezi v Mnangagwa and Zanu PF litigation
The case of Sybeth Musengezi v Zanu PF, emmerson Mnangagwa, and others has captured the attention of the media and citizens. Musengezi says he is a member of Zanu PF who is aggrieved by how the succession of Mnangagwa to the helm of Zanu PF was handled four years ago when former leader President robert Mugabe was toppled in a palace coup.
In defining the nature of the litigation, it is important to clarify what it is not about. Musengezi is not challenging Mnangagwa’s presidency of Zimbabwe. rather, he is challenging Mnangagwa’s presidency of Zanu PF, the political party. He is not challenging the violation of the national constitution. rather, he is challenging the alleged violation of Zanu PF’s constitution. He argues that the ascendency of Mnangagwa to the party’s presidency violated the constitution of Zanu PF and wants it corrected. In this way, Musengezi’s case bears a strong resemblance to a case that was brought against the MDC in 2018 by elias Mashavira who argued that the MDC constitution had been violated. It is impossible to examine the Musengezi case without reference to that critical precident. With Musengezi being a little-known political actor and Mnangagwa and Zanu PF being the president and ruling party of the country, this is a David against goliath affair. The application was lodged at the High Court and as required by law; the respondents submitted their response, focusing predominantly on technical defences. Technical defences are where a party seeks to have the matter dismissed on procedural aspects, without going into the merits of the matter. In the past few days, however, the matter has drawn more attention after lawyers representing President Mnangagwa, Zanu PF and its officers cited in the proceedings wrote a highly charged correspondence to Musengezi’s lawyers. Musengezi’s lawyers responded, expressing reservations at the communication from the opposite end. This sideshow between the lawyers is unnecessary, serving only to obfuscate the crucial dispute between the parties which requires a judicial resolution.
The exchange between the lawyers has escalated matters and left many observers wondering what is going on. They asked for an explanation as to the implications of the exchanges between the lawyers. I have taken the decision, not without some reluctance since the matter is before the courts to examine the proceedings and their implications. Since the matter is playing out in the public arena, it is fair game and worthy of academic commentary. Law is a notoriously adversarial subject, one view often attracting an equal and opposite reaction. These are my observations on the ongoing matter and no doubt there may be many more.
Presidential immunity
First, Mnangagwa’s lawyers have pleaded presidential immunity in response to Musengezi’s challenge. The national Constitution confers immunity from any personal lawsuits while a president is in office. The relevant provision is section 98(1) of the Constitution which states as follows:
“While in office, the President is not liable to civil or criminal proceedings in any court for things done or omitted to be done in his or her personal capacity.”
Much will depend on whether the court views Musengezi’s case as a lawsuit against Mnangagwa in his personal or official capacity. If personal refers to things done or omitted outside official duties as national president, it is arguable that matters to do with his role in Zanu PF fall in the personal realm. But it is important to note that presidential immunity is not absolute, which is why a sitting president can still be sued in his personal capacity in a presidential petition[1].
However, the question of presidential immunity does not need to detain us at length because it is not central to the legal proceedings brought by Musengezi against Zanu PF for violating its constitution. Assuming the court recognises and upholds Mnangagwa’s immunity defence, it will have no impact on the central party to the action, which is Zanu PF. It is Zanu PF that Musengezi is suing, and Zanu PF does not have a claim to presidential immunity. It is axiomatic that an organisation that has a constitution has a distinct legal personality that separates it from its leaders and members. That is why in terms of its constitution, Zanu PF can sue or be sued in its capacity as a legal person. Presidential immunity is not transmitted by proximity, therefore, even if the court were to uphold Mnangagwa’s immunity, it has no impact whatsoever on Zanu PF and the other individuals who are being sued by Musengezi. They must have their day in court because they are separate legal persons. It is improper to conflate the national presidency with the party. If it were the other way round, Mnangagwa would not enjoy immunity because he would not be facing legal action in his personal capacity.
If anything, it is in Mnangagwa’s interests to be cited so that he can make representations in a matter whose outcome might affect him. It would have been odd, if not outrightly unfair, to omit him from the proceedings when the issues have a direct impact on Mnangagwa’s rights and interests. Pleading immunity may let him off the case, but it deprives him of the opportunity that Musengezi had offered him to make representations to safeguard his rights and interests. As it is, if his plea of immunity is upheld, Mnangagwa may be dropped from the proceedings but that on its own will not stop the proceedings against Zanu PF and other officers. The court will have to find another ground to dismiss Musengezi’s case against these parties. In a nutshell, the defence of presidential immunity does not save Zanu PF and its other officers from Musengezi’s legal proceedings.
Exhaustion of internal remedies
Mnangagwa and Zanu PF argue that Musengezi should be barred because he did not exhaust all internal remedies in Zanu PF before approaching the court. They are referring to the principle that a person must exhaust internal remedies within an organisation before approaching the courts for relief.