Liberal Democrats and Others v President of the Republic of Zimbabwe E.D. Mnangagwa N.O. and Others

The applicants (two political parties represented by their leaders and a political activist) filed a chamber application for leave for direct access to the Constitutional Court on 1 March 2018. The application challenged the constitutional validity of events surrounding the resignation of former President Robert Mugabe on 21 November 2017. The applicants alleged that: (1) the resignation was coerced by military action ("Operation Restore Legacy") conducted between 14-21 November 2017; (2) the impeachment proceedings commenced against the former President were at the behest of the military; and (3) the assumption of office by the first respondent (President Mnangagwa) was unconstitutional. The applicants sought an order declaring these events unconstitutional and requesting establishment of a Transitional Authority to govern for 12-24 months. After filing the application and having it set down for hearing on 24 May 2018, the applicants filed a notice of withdrawal on 14 May 2018, then disclaimed the withdrawal through a newspaper article making allegations against court officials. A confirmation of withdrawal was sent on 23 May 2018. On the hearing date, the applicants failed to appear. The Court proceeded to hear submissions from the fourth respondent (Speaker of the National Assembly) and reserved judgment.

• Whether the purported withdrawal of the application after the matter was set down for hearing was valid without consent of other parties or leave of court
• Whether the applicants complied with Rule 21(3) of the Constitutional Court Rules requiring an application for direct access to state grounds why it is in the interests of justice to grant direct access
• Whether the application had prospects of success on the merits
• Whether former President Mugabe's resignation from office on 21 November 2017 was voluntary and constitutionally valid under section 96(1) of the Constitution
• Whether the impeachment proceedings against the former President were conducted at the behest of the military and were unconstitutional
• Whether the assumption of office by President Mnangagwa was constitutional
• Whether costs should be awarded against unsuccessful private parties in constitutional litigation

The application for direct access to the Constitutional Court was dismissed. The applicants were ordered to pay the fourth respondent's costs jointly and severally, the one paying the others to be absolved.

A written notice of resignation by a President addressed to the Speaker and signed by the President, which explicitly states the resignation is voluntary, raises a presumption of valid constitutional resignation under section 96(1) of the Constitution. Absent credible evidence from the resigning President himself that the resignation was signed under duress, third-party allegations cannot impugn the constitutional validity of the resignation. Once a matter is set down for hearing, it cannot be withdrawn without consent of all parties or leave of court; a purported notice of withdrawal filed unilaterally after set down has no legal effect. An application for direct access to the Constitutional Court must comply with Rule 21(3) by stating grounds showing it is in the interests of justice to grant direct access, and must demonstrate prospects of success on the merits. While costs are not ordinarily awarded against unsuccessful private parties in constitutional litigation, costs may be awarded where the litigation is frivolous, vexatious, amounts to abuse of court process, or is conducted with malicious or improper motives.

The Court made several non-binding observations: (1) Impeachment is "a dangerous political process, to be embarked on as a last resort and in clear cases" as a failed impeachment may have divisive effects while a successful one visits disgrace on the nation and former President, but in clear cases "the personal and national disgrace resulting from the removal of a President from office through the impeachment process are a price worth paying." (2) The Court noted that one does not ordinarily sign a document whose contents do not represent one's interests, and a signature is itself evidence of the signatory's true intention. (3) The Court observed that the former President's decision to resign while impeachment proceedings were underway "suggests that he carefully considered the chances of surviving the process and concluded that his removal from office was the inevitable outcome." (4) The Court commented that the relief sought by the applicants (a Transitional Authority) was internally inconsistent with their claim that the resignation was invalid, as invalidating the resignation would require restoring the former President to office, not creating a new transitional government. (5) The Court noted that the applicants' malicious allegations against court registry staff were made "to attract publicity for political reasons."

This case is significant in Zimbabwean constitutional law for several reasons: (1) It established clear principles regarding withdrawal of matters after set down for hearing, requiring consent or leave of court. (2) It interpreted the constitutional requirements for a valid presidential resignation under section 96(1), holding that a written notice stating the resignation is voluntary creates a strong presumption of validity absent evidence from the resigning President himself. (3) It clarified the procedure for filling a presidential vacancy under the Sixth Schedule when a President resigns during their elected term. (4) It confirmed that Parliament's power to institute impeachment proceedings under section 97 is discretionary and cannot be challenged absent evidence of procedural irregularities. (5) It established that costs may be awarded against unsuccessful parties in constitutional litigation where there is abuse of process, frivolous litigation, or malicious conduct, departing from the general rule against costs in constitutional matters. (6) The judgment validated the constitutional transition of power from President Mugabe to President Mnangagwa in November 2017, a critical moment in Zimbabwe's political history.