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Big Saturday Read: The Chiwenga Legal Drama Continues

January 25, 2020

 

Earlier this week, we gave you two pieces. In case you missed them, you can read them here: the first was a critique of the Supreme Court judgment on the currency issue and the second was a demonstration of how political elites were able to evade their loans through an entity called ZAMCO and the presidential decree.

 

Meanwhile, the Chiwenga legal drama eventually found its way to a High Court judge, who delivered a damning verdict against Vice President Chiwenga in his marital dispute with his estranged wife, Marry. In last week’s BSR, I explained why the former military general had misfired in his strategy to the matrimonial dispute as the case bomeranged and exposed too many skeletons in the family closet. 

 

They opted to negotiate an out of court settlement at the eleventh hour. It was a wise course of action to stem the haemorrhage that the Vice President’s reputation was suffering. However, it did not work, implying there is too much acrimony between the parties; a great chasm in the positions of a duo that not so long ago seemed to be the great power couple of the capital – the military general who had toppled a long-serving ruler and a former model of younger stock.  

 

The facts of the case are simple. Marry Chiwenga was seeking restoration of possession of their marital residence in the opulence of Borrowdale Brooke and business premises in Domboshava. She was also seeking custody of their three children and a number of vehicles. Chiwenga had denied her access to these properties and taken custody of the children upon her return from remand prison where she had stayed for three weeks. One of the charges she is facing is that she tried to murder the general during a period of infirmity at a hospital in South Africa. 

 

Spoliation Order

 

Marry went to court seeking a spoliation order and custody of the couple’s children. A spoliation order is a legal instrument that restores possession of an asset to the person who held it before it was unlawfully taken away. It is not an issue whether or not the person owns the property in question. It protects the rights of a possessor and prevents anarchy which might result from persons taking the law into their own hands. It reaffirms the importance of using legal means rather than resorting to self-help. 

 

So even if you are the rightful owner of a property, if someone is living in it, you are required to use the law to evict them rather than to resort to self-help. If you remove them without recourse to the law, they are perfectly entitled to sue for a spoliation order - effectively, a restoration of possession. They will tell the court that they have been despoiled. The same principle applies to movable assets. It could be a car, a bicycle or a mobile phone. This might surprise many who see people using self-help a lot of the time. However, that self-help is common-place does not mean that the conduct is lawful. 

 

The main issue turned around the question whether Marry Chiwenga was deprived of possession of the matrimonial residence, the business premises and the vehicles from which she was denied access by the Vice President or his agents.  

 

Justice Dube-Banda took the view that the Vice President did deprive his estranged wife possession of the property when he denied her access to the home and business premises upon her return from remand prison. He therefore ordered a restoration of possession. The judge also ordered the return of the couple’s minor children into Marry’s custody. 

 

The Appeal

 

Predictably, Chiwenga has appealed to the Supreme Court, extending the legal battle into a forum where he hopes to find a more sympathetic ear. The appeal also suspends the effect of the High Court judgment, delaying the remedy and therefore, the reunification of mother and children.  

 

The Supreme Court is unpredictable. It might well take a different view on the question of whether Marry was in possession of the property when she was denied access upon her return from remand prison. But if a person goes away on holiday and upon return finds that someone has occupied that property and denies her access, it cannot reasonably be argued that she was not in possession of it when the intruder took occupation. Possession of a residential property cannot be restricted to mean continuous physical presence. Despite her enforced absence, she was for all intents and purposes still in possession of the property and denial of access was tantamount to unlawful eviction and therefore dispossession. 

 

Still, Chiwenga is betting on the Supreme Court finding some fault with the High Court judgment and thereby generating a point of victory, whatever the impact on all those involved, including the young children. It’s a question of victory at all costs. The debate over the merits of the judgment notwithstanding, the judge made significant observations which impact the man who has ambitions to one day succeed Mr Mnangagwa as president of Zimbabwe. 

 

Unlawful conduct

 

First, the effect of the court’s finding is that the Vice President acted unlawfully. The judge deplored the resort to illegal self-help measures which were employed by the Vice President. He chastised the former general for taking the law into his hands and accused him of breaching the rule of law. The judges stated, “if he [Chiwenga] does not want applicant [Marry] to access the property, like any other person, he must deploy due process of law. Not to take the law into his own hands … such conduct is anathema to the rule of law”. 

 

This is an incriminating finding against a person who holds the second highest office in the country and has sworn under oath to defend and uphold the Constitution and the laws of the land. It is one thing for a Vice President to be accused of violating the law, but being held by a court of law to have acted unlawfully and to have abused state organs, is unseemly. It raises the question whether a person who wilfully violates the law is fit for office. The Constitution lists “failure to obey, uphold or defend this Constitution” and “wilful violation of this Constitution” as grounds for removal of a Vice President. Yet that is unlikely to ever be used in a highly partisan parliament that has long abdicated its responsibility to hold the executive to account. 

 

However, that the man has no regard for legal processes shouldn’t be surprising. After all, he spearheaded the coup in November 2017, in which the command rules of the security establishment were blatantly violated. He resorted to self-help means then and the incumbent ought to be aware that it may yet happen again. 

 

Abuse of the military

 

Second, the judge condemned the use of the military to settle the Vice President’s marital dispute with his estranged wife. This is an issue that was raised in the last BSR, commenting on the Vice President’s estranged wife’s narrative in which she indicated how soldiers had stopped her from entering the marital home. On this, the judge stated, “She [Marry Chiwenga] cannot be refused entrance to the matrimonial home by members of the military. In fact, it [is] unacceptable and anathema to the constitutional values of this jurisdiction that the military may be used to settle a matrimonial dispute. This is frightening and undermines the values inherent in our Constitution, which are the rule of law, supremacy of the Constitution, gender equality, fundamental human rights and freedoms and good governance.” 

 

These are strong words from a judge. They confirm judicial notice of the abuse of the military by  the Vice President. They encapsulate a problem that has contaminated the Zimbabwean state, namely, the abuse of state institutions by the powerful political elites. But if the Vice President can do this against his wife, what more to ordinary citizens? It’s not surprising that twice during the tenure of this regime, the military has been deployed against civilians, each time with fatal consequences. 

The court made it clear that everyone is equal before the law, regardless of their powerful political office. As the judge stated, “There cannot be, in constitutional democracy, a law for the powerful and a law for the weak. It is in such instances that this court must come to the rescue of the weak and downtrodden …” This was a bold statement of the court’s constitutional obligations. 

 

Legal responsibility

 

The judge also rejected the Vice President’s defence to the effect that the conduct of members of the military towards his wife was a result of superior commands within the military’s command structure. He was, in effect, attempting to absolve himself of responsibility for the military’s actions. However, the judge dismissed the deception and placed responsibility squarely upon his shoulders as the husband of the affected spouse. “My view is that it is the duty of the respondent [Chiwenga] to alert those commanders of his legal obligations in respect of his spouse”, said the judge. In other words, he cannot hide behind the military to avoid his legal obligations.  

 

The judge might as well have added that members of the security services have a duty to act in accordance with the Constitution. They are also specifically prohibited, in terms of section 208 of the Constitution, from violating the fundamental rights or freedoms of any person. 

 

Rights of women

 

The judgment marks an important reaffirmation of women’s rights in marital disputes where they have traditionally faced the might of their economically, and in this case, a politically powerful husband. The judge could have easily been influenced to bend in favour of the powerful wind of power to find in favour of the powerful former general. But one of the recent recruits to the bench demonstrated admirable courage and stood firm in defence of his constitutional role. 

 

He sought reliance on a provision of the Constitution (section 46) that encourages development of the common law in a way that is consistent with and fulfils fundamental rights. In this way, he was able to draw upon the right to be protected from arbitrary eviction (section 74) to protect Marry Chiwenga’s rights to possession of the matrimonial home. Gender equality is one of the founding values of the constitution. It is based on the recognition that historically, women have been subordinated to their male counterparts. 

 

While the Constitution recognises equal rights to guardianship and custody of minor children, it does not approve of self-help measures. If Chiwenga wanted to evict his wife or take custody of their children, he was supposed to follow the due process of law. It would be a retrogressive step for society if powerful men like Chiwenga were to be permitted to resort to self-help measures when there are clear legal remedies.  If the court had failed to protect Chiwenga’s wife, what more for the rest of women who find themselves in similar situations?

 

As the judge stated, “Whatever the reasons are [for evicting the wife], I do not agree that a spouse may be removed from the matrimonial home outside the parameters of the law. To my mind, she may move out of such a home either by her consent or after the conclusion of due process”. The judge also condemned the use of security guards to bar Marry Chiwenga from accessing the matrimonial home. Exhorting the guards to stick to their mandate, the judge stated, “… security personnel are not guarding the property against a spouse. I see no basis on which the guards would refuse a spouse to access and enjoy the use of a matrimonial asset. The guards must keep to their lane.”     

 

Conclusion

 

It is not just the verdict of the High Court that has gone against Chiwenga. The loss of moral ground extends beyond the confines of his messy marital situation. Whatever credibility he had left is waning fast. His marital history suggests a man who struggles to handle nuptial fallouts. This circumstance provides an insight into the limitations of his conflict-resolution skills. For him, it’s a zero-sum game; there’s virtually no middle ground. This is why, instead of pausing to reflect and search for common ground, he has immediately launched an appeal to the Supreme Court. 

 

This is a man who will stop at nothing until he gets his way. That there are children caught up in this spectacle is of no consequence to his pursuit of victory at all costs. This uncompromising character is indicative of what contenders have to deal with at national level, well beyond the marital field. If only someone could take heed of these words from Judge Dube-Banda,

 

“It is significant to make the point that one of the crucial elements of the Constitution of Zimbabwe, is to make a decisive break from the normalisation of abuse of State power that preceded the Constitution …  In terms of the rule of law, government and its officials and agents as well as individuals and private persons are accountable under the same law.”

 

If only such words could be implemented by those who have executive charghe of the State.  

 

WaMagaisa 

 

wamagaisa@me.com 

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