UK based lawyer explains weaknesses in Chiwenga appeal

By Brighton Mutebuka

I have got reason to thank my brother Hopewell Chin’ono for making available the High Court’s full judgment and the VP’s appeal grounds.

The effect of the appeal is to suspend the High Court’s decision. The VP has rightly exercised an option that is available to him under the law. This is undoubtedly better than “self-help” or taking the law into his own hands.

His grounds are mainly premised on the fact that:

a. the matter is not urgent;

b. there was no unlawful dispossession of the children from Marry;

c. the court erred in proceeding with the matter relating to the minor children on the grounds of spoliation rather than via the specific procedure set out in S5(2) of the Guardianship of Minors Act [GMA] which deals with estranged couples living separately and competing for custody rights and, finally,

d. that the court exercised jurisdiction on an erroneous basis.

In my view, the VP’s grounds are unpersuasive and he faces significant hurdles if the case is rightly decided on its merits.

The main challenges are:

a. he practised self-help by abusing his office through instructing the Military to help him to defy the High Court’s Bail Appeal Decisions. He was mandated to comply with those decisions first while taking urgent steps towards challenging them;

b. His conduct encourages anarchy, vigilantism and is inconsistent with the responsibilities that come with his office;

c. He has clearly shown contempt and is approaching the court with ‘dirty hands’. He cannot have his cake and eat it and courts tend to frown upon this sort of behaviour.

In relation to urgency and jurisdiction, for me it is unimpeachable that the High Court has got inherent jurisdiction in all matters involving children.

Likewise, the High Court’s finding that all matters involving minor children are by their nature urgent is also perched on terra firma / firm ground. Once the court rules that the matter is urgent, the argument premised on the S5(2) GMA procedure falls away.

In relation to the issue of occupation of the matrimonial property, the Vice President’s position is fundamentally weakened by the fact that, it is common cause that upon return from China he lived elsewhere. He only returned to his home on the very day that Marry was sent to Remand Prison. In contrast, Marry was living there with the children the whole time.

Although the Vice President alludes to the issue of ownership, this is misguided, as it is not the issue being litigated on at this point in time. The court is simply interested in possession, ownership / distribution will be addressed during divorce proceedings.

Another point which further weakens his case is that he also took forcible occupation of the Orchid Gardens business premises in Domboshawa, which is more in line with the running theme of control, abuse of power and impunity that the court highlighted.

The VP’s Affidavit before the High Court betrays an alarming degree of ignorance about his position before the law. The position seems to be that be believes that his office places him above the law.

The one thing the appeal does is buy him time pending final determination of the matter. It also takes the sting out of the damning conclusions that the High Court had reached while leaving Marry in limbo.

The VP effectively ignored the High Court decision because he did not like it, until such a time that he was ready to apply to the same court to regularise his earlier decision to ignore its decision, which is astounding given his Constitutional obligations, and makes a mockery of Zimbabwe’s claim to be a democratic Republic which adheres to the rule of law.

Brighton Mutebuka is a Zimbabwean Lawyer and Solicitor based in the UK. He runs Mutebuka & Co Immigration Lawyers and is an alumni of the University of Zimbabwe and Leeds University’s School of Law. He writes in his personal capacity.