Legal experts say President Emmerson Mnangagwa can be sued as he is not immune to court proceedings and has to respond to any lawsuit challenging his legitimacy as the ZANU PF leader.
Last month, a ZANU PF member, Sybeth Musengezi, challenged Mnangagwa’s ascendancy to the top party post in November 2017 when he was fired in government and in ZANU PF by the late former President and party leader Robert Mugabe.
In an opposing affidavit to Musengezi’s High Court application last week, Mnangagwa’s lawyers argued that The President was not liable to judicial proceedings in terms of section 98 of the Constitution.
Section 98(1) of the Constitution states: “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.”
University of Kent constitutional law lecturer and political analyst Alex Magaisa on Sunday said Mnangagwa did not have such immunity as the institution of “Presidency” was different from the party ZANU PF as an institution.
Magaisa cited the 2018 High Court case of Elias Mashavira against the MDC-T, in which Nelson Chamisa was declared illegitimate leader of the opposition party. He wrote:
The case does not stand/fall on his (Mnangagwa’s) immunity. Musengezi sued ZANU PF, Mnangagwa and other party officers.
Let’s assume for a moment that Mnangagwa’s immunity defence is valid, it doesn’t apply to Zanu PF and the other parties. They must answer the lawsuit and they must decide whether their conduct was lawful.
The outcome will still be consequential upon Mnangagwa. Musengezi is relying on the (Elias) Mashavira case against the MDC-T.
Just like Mashavira, Musengezi sued the party and its officers. The Mashavira court directed party officers to correct past irregularities of the party.
Likewise, the decision that the courts make in the Musengezi case must primarily focus on the conduct of the party at the relevant time, and if it finds that there were irregularities, it should order the party’s officers to carry out their mandates to correct the irregularities.
They will have a hard time distinguishing the Musengezi case from the Mashavira precedent without looking silly and partial.
Mashavira waited years before making his challenge and the court allowed him, although he had not exhausted internal remedies in the MDC-T.
It cannot now turn around and say Musengezi should have exhausted internal remedies in ZANU PF before approaching the courts without sounding stupid.
Another lawyer, Tawanda Mapuranga, told NewsDay that even though the Constitution had provisions of the President’s immunity, it did not change the nature of the application before the courts. He said:
In this case, Musengezi’s case does not seek relief against Mnangagwa in his official capacity as the President of Zimbabwe.
The court can render judgment on the case without Mnangagwa being sued. If he has immunity, he can be removed and the rest of the respondents can respond to the matter, and then it can be decided without him.
However, constitutional law expert Lovemore Madhuku said there was no chance for the court to rule that Mnangagwa was not immune.
Back to top