20 July 2018

Zimbabwe: Court Cannot Try ED While in Office - Judge

President Mnangagwa cannot be tried for any misdemeanour committed in his personal capacity while he is still in office, the High Court has ruled.

The Chamisa-led MDC had sought to impugn the conduct of President Mnangagwa for alleged interference with the independence of traditional leaders ahead of harmonised elections on July 30.

President Mnangagwa and Zanu-PF denied ever encouraging candidates to bribe traditional leaders.

In her ruling on Wednesday, Justice Mary Dube said Section 98 (1) of the Constitution created Presidential immunity hence the court has no jurisdiction to try President Mnangagwa.

"I decline to exercise my jurisdiction over the President of Zimbabwe," she said, adding: "The President of Zimbabwe is improperly before the court.

"The relief sought against him cannot be granted."

The MDC was accusing President Mnangagwa of inciting Zanu-PF candidates to offer trinkets to chiefs and traditional leaders to get their support in the harmonised elections. The opposition party argued that President Mnangagwa's utterances, which were made on June 9, 2018 to Zanu-PF party supporters in Mutoko in Mashonaland East Province, motivated some ruling party members to engage in corrupt practices for the purposes of vote buying ahead of the elections.

But President Mnangagwa's lawyer Advocate Lewis Uriri of the Temple Bar (Inns of Court) argued that the application was political grandstanding.

The application, he said, was meant to make a political statement for external forces thought to have an impact in the conduct of international relations, bearing in mind that international relations are based primarily on the principle of recognition.

Adv Uriri argued that the intention of the MDC application was to find basis to undermine the recognition of the Government of the people that would be elected on July 30.

Justice Dube declined to deal with the matter on papers, saying the utterances at the centre of the dispute could only be ventilated through leading oral evidence.

"I am satisfied that a material dispute of fact exists on the papers between the parties which cannot be resolved on the papers," she said.

"There is need for oral evidence to be led to establish the authenticity of the audio recordings."

Justice Dube said MDC had not requested the court to refer the matter to oral evidence in which the court has discretion either to dismiss the application or direct that evidence be led in the application to ventilate the dispute or that the matter goes to trial. The court, noted Justice Dube, was not asked to either refer the dispute to trial or lead evidence in the application on the utterances in dispute.

"The applicant chose to insist that there was no material dispute of fact exhibiting itself on the papers," she said.

"I find it undesirable for me to mero motu (voluntarily and without prompting or request) refer the dispute to trial. It is for this reason that I will dismiss the application."

President Mnangagwa, who was cited in the matter along with Zanu-PF party, Chief Fortune Charumbira and Chief Alfred Tome, also argued that the law did not allow a sitting President to be sued in his personal capacity in matters of that nature and that the court should simply refuse to hear the matter.

They argued that the MDC-T leadership wrangle was still pending before the High Court and that Mr Chamisa and his faction cannot be allowed to hold themselves out as the legitimate MDC before determination of the matter.

Justice Dube disagreed with the respondents that the Chamisa-led MDC had no legal footing to bring such an application. She ruled that MDC was contesting the elections under the umbrella of the MDC-Alliance.

"What is clear is that the MDC is not contesting in the current elections under the MDC name for reasons which are not before the court," she said.

"The court is able to identify the party or faction of the MDC before it.

"The question regarding the legitimacy of the applicant should not detain the court."

Justice Dube noted that the Chamisa-led MDC, being a party contesting in the elections and having fielded candidates for the elections, it naturally has an interest in issues that have a bearing on the fairness of the campaigning process and the actual elections themselves.

"The MDC is directly affected by the campaigning process and as such has a direct and substantial interest in the conduct of the election and campaigning process," she said.

"The applicant qualifies as an aggrieved party and, therefore, has the locus standi to ring these proceedings."

Adv Uriri was instructed by Mr Aston Musunga of Musunga and Associates.

Mr Alec Muchadehama and Mr Jeremiah Bhamu acted for the MDC, while Adv Thembinkosi Magwaliba instructed by the Civil Division of the Attorney General's Office appeared for Chief Charumbira and Chief Tome.

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