THE new Zimbabwe constitution given the thumbs up in a 2013 referendum states that no individual or organisation is above the law and as such former Zanu PF secretary for administration, Didymus Mutasa, is well within his rights to take the party to court over its controversial congress held last December, legal experts say.
Mutasa is challenging resolutions made at the congress which saw Zanu PF bigwigs aligned to former vice-president Joice Mujuru either relieved of their duties or expelled following an alleged plot to overthrow President Robert Mugabe.
However, Mugabe has come out guns blazing declaring that no competent judge can handle the Mutasa case because it has to do with the Zanu PF internal processes. He made chilling threats against judges, suggesting his party is above the law.
Speaking at the official opening of the Africa Chrome Fields (ACF) chrome smelting plant in Zibagwe last week, Mugabe said the case brought by Mutasa and former party spokesperson Rugare Gumbo cannot be handled by the courts.
“If there is a magistrate or judge who will want to preside over this matter, then I would like to know where he/she went to school and where he/she got the powers to rule over Zanu PF,” Mugabe said amid cheers from the Zanu PF crowd.
“I will ask because this matter is not one for the courts. If we say we no longer want you in our party and want you to leave, is that a problem?”
Condemning Mutasa’s recourse to the courts, Mugabe described Mutasa as “a fool who throws his money in the sea” hoping to reap rewards.
Mugabe appears to have problems with the judiciary. In 2002 he said: “We will respect judges where the judgments are true judgments. We do not expect that judges will use subjectivity in interpreting the law. We expect judges to be objective.
“We may not understand them in some cases, but when a judge sits alone in his house or with his wife and says ‘this one is guilty of contempt’ that judgment should never be obeyed. I am not saying this because we would want to defy judges, but if they are not objective, don’t blame us when we defy them.”
In Zibagwe, he also said Mutasa, who was also former presidential affairs minister, was supposed to approach the Zanu PF central committee and then Zanu PF congress to have his grievances solved and not the courts.
He said people were supposed to fear the party because it was a scary institution.
However, legal experts say Mutasa is merely exercising his right which is enshrined in the new constitution.
“In dealing with the Mutasa challenge, and constitutionalism, the following provisions of the constitution need to be taken into serious consideration: That this constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency,” said Derek Matyszak of the Research and Advocacy Unit.
“The obligations imposed by this constitution are binding on every person, natural or juristic, including the state and all executive, legislative and judicial institutions and agencies of government at every level, and must be fulfilled by them.
“The constitution makes it clear that every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.”
Mugabe’s recent utterances are in direct contrast to what he said in 1980.
“Only a government that subjects itself to the rule of law has any moral right to demand of its citizen’s obedience to the rule of law. Our constitution equally circumscribes the powers of the government by declaring certain civil rights and freedoms as fundamental. We intend to uphold these fundamental rights and freedoms to the full,” Mugabe said then.
However, over the past 35 years Zimbabweans have witnessed a slow erosion of the rule of law, but this erosion has turned into a landslide since 2000.
Another law expert Lovemore Madhuku, a professor of law, said every person has the right to approach the courts when he or she feels there has been an infringement on their rights.
“There is no matter or dispute that cannot be brought to court. Under the constitution there is no matter that can be said to be non-judiciable. Mugabe is ignorant of this fact,” Madhuku said.
The constitution makes it clear that anybody is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.
To prove his inconsistency in 2000, Mugabe said: “Let it be known that the courts in independent Zimbabwe do belong to the people for whose convenience and protection they were set up in the first instance.”
Alex Magaisa, a United Kingdom-based law lecturer, said if Zanu PF failed to follow certain procedures in amending its constitution, then Mutasa has every right to approach the courts.
“There is a procedure to be followed when amending the constitution. That procedure exists for a good reason. It is so that the constitution is not amended at the mere whim of individuals or a faction,” Magaisa said.
“In the case of Zanu PF it is plain that the procedure was not followed and that this is a contravention of Zanu PF’s own constitution. So Mutasa has a right to seek redress so that the constitution is adhered to,” he said.
Constitutional lawyer Chris Mhike also said every citizen of Zimbabwe has a right to approach the courts if they feel their rights have been infringed.
“Any citizen, including Mutasa, has a right to approach courts of law for legal remedies, about any subject matter,” Mhike said.
“Even foreigners, at least in terms of certain sections of the constitution that refer to ‘everyone’, are protected by the law.”
Mhike also said whether a litigant in fact has a good case or not, and whether or not that litigant has the appropriate legal standing to approach a court, are questions to be answered by the court that would have been approached by the litigant.