BSR: Legal charade threatens new government


November’s drama

In Zimbabwe, November is known as Mbudzi, the month of the goat. Traditionally, it is a sacred month. No rituals can be performed during the month of Mbudzi. No matter how big the event, tradition prescribes that the month of Mbudzi must be avoided. However urgent it might be, it has to wait. It is ironic that the most dramatic political transition in a generation chose the sacred month as one mighty figure fell by the wayside, while another rose to take the throne.

Emmerson Mnangagwa became Zimbabwe’s new leader at a grand ceremony in Harare on 24th November 2017. The event completed a dramatic series of events that began three weeks earlier when he was sacked as Vice President by his then boss, Robert Mugabe when he was President of the country. Mugabe stayed away from his protégé’s crowning moment. The veteran politician’s world collapsed on Tuesday 21st November when circumstances left him with no choice but to resign. After 37 years in power, his own party had commenced proceedings to remove him from office. It was a dishonourable end to a long and controversial career.

Mugabe’s resignation followed an extraordinary military intervention on 15th November. There were mass protests on Saturday 18th November in Harare and Bulawayo, calling for Mugabe’s resignation. On Sunday, Mugabe stunned the world when, against all odds, he refused to resign. This prompted an ultimatum from his party to resign or face impeachment. The party also sacked him from his position as leader. Unable to hold the tide, Mugabe was eventually forced to jump, his letter arriving midway through the joint parliamentary seating which was considering his removal.

Mnangagwa, who had taken temporary exile following his sacking, returned home on Wednesday 22nd November. Two days later, he was sworn into office as president. It completed a dramatic power struggle in the ruling party, ZANU PF, which revolved around Mugabe’s succession. On the one side was G40, a faction which backed President Mugabe’s wife, Grace and on the other, there was Lacoste, which favoured Mnangagwa. For a while, it seemed G40 had won the political battle, with Lacoste seemingly buried after Mnangagwa’s sacking. Lacoste then made a stunning comeback when it invoked the force of the gun as the military intervened. In the end, the gun led the politics.

Rented power

While Zimbabweans understandably embraced military intervention because it led to the ouster of Mugabe and prevented his wife Grace from succeeding him, they must also embrace the fact that it comes with further, less palatable consequences. The episode demonstrated once again that the military is a critical arm of the state which has become the kingmaker in Zimbabwean politics. While the drama that accompanied the latest intervention surprised many people, it was by no means the first time that the military had played a decisive role in Zimbabwean politics. In 2008, the military intervened after Mugabe was defeated by his nemesis, Morgan Tsvangirai. The intervention ensured that Mugabe retained his position as president, but it also meant he would forever be indebted to the military. Despite the charade of elections, Mugabe’s source of power was no longer the people but the military, who refer to themselves as “stockholders”.

However, Mugabe seems to have forgotten this and when he saw the huge crowds that attended his rallies, he thought it was out of love and respect. He did not realise the majority of these people attended out of fear or coercion. He forgot that the power he was renting had landlords who could evict him at any time. They had stopped Tsvangirai in 2008 and now they evicted him and installed their own choice at a time when Mugabe wanted to promote his wife. A tenant wanted to give the premises to another tenant without the agreement of the landlord. The landlord has its own choice. However, by implication, this also means Mnangagwa is the new tenant of the same landlord.  Having seen Mnangagwa lose the political battle, the military stepped in, just as it had stepped in to save Mugabe in 2008 when he was losing the political battle to Tsvangirai.

Futility of elections?

More importantly, the events of the past three weeks are a grim reminder of the reality that the military will step in to determine the course of politics, including the outcome of the next election. After taking such drastic measures to protect Mnangagwa, stretching and in some ways, breaking the boundaries of the law, it is impossible to imagine the military standing by and watching their preferred candidate lose an election and power. Not after taking such risks. Their intervention in 2008 was critical and without their intervention last week, Mnangagwa would not have taken the oath of office yesterday. The difference is that the 2008 intervention was widely condemned while the 2017 intervention was generally accepted and celebrated. Should it become necessary to intervene again if their preferred candidate lose in 2018, there will be nothing to stop them.

Nevertheless, the military might not even need to intervene in 2018 if Mnangagwa plays his cards right and does not squander the opportunities between now and the next election in less than 10 months. For someone who has come to power through a tenuous legal path, Mnangagwa is enjoying a huge amount of goodwill both among Zimbabweans and the international community. After years of suffering under Mugabe’s rule, there are many Zimbabweans who are willing him to succeed because his success would translate into material benefits for them. They are tired of the politics and want to get on with their lives. Nations within the international community are also trying to place themselves strategically in relation to the country. Thus, there is promise of re-engagement between Zimbabwe and the West after years of a toxic relationship. China, Zimbabwe’s all-weather friend is also hoping to maximise on its established position.

Opposition’s new challenge

In addition, the irony of what has happened in the last three weeks is that it is now ZANU PF that has undergone radical renewal while the opposition is now stuck with the negative label of failing to embrace change. With Mugabe now off the stage, the “Mugabe Must Go” slogan is gone too. With the 93-year old gone, the argument that ZANU PF is led by an old man has also lost traction. ZANU PF is experiencing a new verve that it last enjoyed in the eighties, after a victorious liberation war. It is the opposition that is now lumbered with accusations of failing to renew and embrace change. The fact that ZANU PF has undergone leadership change is now placing enormous pressure upon the opposition to also consider a similar path.

Indeed, if Mnangagwa walks the talk and manages to create a picture of a country that respects the rule of law, property rights and civil liberties, he will begin to appear like a born again democrat in some eyes. In particular, if Mnangagwa delivers on the economic and social front, he could well win the next election without having to rig or rely on the gun. But rest assured, the gun will always be there in reserve, should it become necessary to prevent the loss of power. This belief that he can turn things around and the might of the gun behind him have given Mnangagwa the confidence to declare that elections will be held as scheduled – less than 10 months after assuming a long-awaited office. It’s the conduct of a man who knows the momentum is with him. The opposition must now reorganise itself because this election will be a lot harder against Mnangagwa and the new ZANU PF that it would have been against Mugabe and decaying and disaffected ZANU PF.

Legal oddities

One of the most conspicuous features of these dramatic three weeks has been the persistent struggle that the authors of Mugabe’s ouster have had over the legality of their actions. Right from the beginning, they have endeavoured to create a veneer of legality even where the boundaries of the law have been straddled. Hence, when took over the television station and announced their intervention, they included a disclaimer that it was not a coup. Even as Mugabe told South African President Jacob Zuma that he was under house arrest, the military still maintained a façade of civilian control. They allowed him to participate in the rituals of his office, including officiating at a graduation ceremony and even calling a Cabinet meeting when it was an exercise in futility. This performance was designed to demonstrate that the President was still in charge and that there had been no unlawful change of government, notwithstanding the fact that the military was the de facto authority.

However, efforts to create the veneer of legality continued even on the day that Mnangawa was inaugurated. Over at the courts, the Judge President, Justice George Chiweshe issued two court orders which can be summed up collectively as a legal oddity. The represent a desperate effort to present a façade of legality over the events of the past three weeks.

Nullification of VP sacking

The first court order, in a case in which a non-existent Acting President is cited, purports to nullify the sacking of Mnangagwa by Mugabe on 6 November. The effect of the order is to say that Mnangagwa was still the Vice President as he had not been lawfully fired by Mugabe. It is interesting that the legal action was not directed at Mugabe, who fired him. Instead it is directed at the Acting President, which means it was submitted after Mugabe’s resignation. Why did it wait until Mugabe’s resignation when the sacking happened almost three weeks before?

The irony is that the court order is a judicial acknowledgment of the fact that there was an Acting President in the hours between Mugabe’s resignation on Tuesday 21 November and the swearing in of Mnangagwa on 24 November. No one, not even the de facto authorities have mentioned Vice President Mphoko, who stayed away from the country after the military intervention which happened while he was away. By law, he should have taken office as Acting President after Mugabe’s resignation. It is interesting that notwithstanding the lack of recognition of this legal fact, there was a court application which cited the Acting President. The court order does not however say who the Acting President was or whether he was served with the application and allowed the opportunity to respond.

The fact of the matter is that it was not necessary to restore Mnangagwa to his position as Vice President. He was not disqualified for the presidency just because he had previously been fired. As long as his party nominated him to succeed Mugabe within the 90-day period after the vacancy arose, Mnangagwa was well within his rights to be sworn in as the new President. The only reason he might have wanted nullification of the sacking was pride, but to what end? It is even more embarrassing to have such a court order in these circumstances.

Sanitising the military intervention

The second court order relates to a case in which Mugabe is cited as a respondent in his capacity as President of Zimbabwe before his resignation. The effect of the order is to sanitise the military intervention by giving it a veneer of legality. It states as follows:

“the actions of the Defence Forces (Zimbabwe Defence Forces of Zimbabwe) (sic) in intervening to stop the take-over of first respondent’s constitutional functions by those around him are constitutionally permissible and lawful in terms of Section 212 of the Constitution of Zimbabwe in that:

a. They arrest first respondent’s abdication of constitutional function, and

b. they ensure that non-elected individuals do not exercise executive functions which can only be exercised by elected constitutional functionaries”

It also authorises the Minister of Defence to take steps to bring about the end of the intervention.

The nature and effect of this court order is quite incredible and far-reaching. It is obviously designed to confer legality upon the actions of the military between 15 November and 24 November when the new President was sworn in to office. It is an acknowledgement of the fact that notwithstanding the denials, there were still doubts as to the legality of the military’s role. It’s a desperate attempt to clothe the military actions with the apparel of legality. The audience for this includes SADC, the AU and the international community just in case anyone still had questions or doubts over the legality over the military intervention. It also pre-empts any legal action that might be brought to challenge the legality of the government or any of its actions taken after the military intervention. There is still a lingering fear in the camp that the government could be illegal. The last time there was a coup on the constitution in the country back in 1965 after Ian Smith’s Unilateral Declaration of Independence (UDI), his government was equally desperate for the courts to confirm its legality.

It is interesting to note that the order was granted by “consent” which suggests that Mugabe agreed to it. If he did, it could be that it was part of Mugabe’s exit deal. Mugabe had already underplayed and condoned the military intervention in his last address to the nation on Sunday 19th November saying it was not a threat to his authority or government.

However, the precedent set by this matter has serious consequences which the new Mnangagwa government must not take lightly. It effectively endorses an interpretation given by the military generals to section 212 of the constitution that it permits military intervention in the affairs of the executive in order to defend the constitution. That is not what section 212 actually provides and it would be interesting to see the judge’s reasoning if he presents a written judgment. The body that is specifically given the power to protect the constitution is parliament. This is why parliament has the power to remove the president for “wilful violation” of the constitution in terms of section 97. It is parliament, not the military which has the role of protecting the constitution. Indeed, this is precisely why the military could not remove Mugabe despite the so-called “abdication of constitutional function” but had to pass on the matter to parliament for impeachment proceedings. It was in recognition of the fact that the military does not have that mandate. It belongs to parliament.

The court order also completely overlooks section 208 of the constitution which prohibits the security services from interfering in political matters. By endorsing the interpretation that the military can interfere in the affairs of the executive, the court has effectively legalised military intervention while violating the very constitution it is sworn to protect.

Further, it is incredible that the court has created this double-edged sword which threatens the constitutional order. Junior officers in the military reading the court order may be encouraged to intervene in any matters, including against their seniors, on the basis of section 212 of the constitution. It also means the Mnangagwa government will now proceed with a sword hanging above its head, which the military can drop at any time that it feels it is necessary. This is so because the court has endorsed the military’s interpretation that it is permissible and lawful for it to intervene in the affairs of the executive. This is a dangerous precedent which places the government at risk from the power wielded by the military. There is a very good reason why the world over it is best practice for the men and women in uniform to stay in the barracks and away from civilian matters except in emergencies and in accordance with deployment orders.

Additionally, the court order fundamentally alters the constitutional order by firmly placing the military as the fourth arm of the state and independent of the chain of command as mandated by the constitution. Traditionally, there are three arms of the state: the executive, legislature and the judiciary, with in-built checks and balances. The military is placed under the command of the executive authority, which is why the president is the Commander-in-Chief of the Defence Forces. Section 213 of the constitution makes it clear that the deployment of security forces is the responsibility of the Commander-in-Chief. If the military intervention was done against Mugabe’s government, and he was the victim, it is hard to imagine how it could have been at his command.

This court order means the military is a separate and independent arm of the state which can exercise authority without, in defiance of and against its Commander-in-Chief and court will still endorse those actions as legal. This does not make legal sense. This case only serves to embarrass the court because the conclusion does not make sense. It is hard to understand why Mnangagwa would want to step into a presidency that is so weak and whose command structure has literally been turned upside down by an order of court. Would he want a military that can intervene in the affairs of his government because a court says such intervention is legal when it plainly breaches constitutional provisions such as section 208 and 213?

All in all, if they are allowed to stand, both judgments may come to haunt Mnangagwa’s government. The second order is more sinister because it gives an odd interpretation to the constitution and upsets the constitutional order by effectively legalising military intervention in the affairs of government. It says the military can take over governmental functions that would still be constitutional and legal. In the extreme form, it is tantamount to legalising a coup. This is a dangerous precedent which upsets and undermines the command structure as provided for under the constitution. It is hard to imagine why any president would want a command structure that is upside down, where he must always look behind his back to check what the boys in uniform are doing.

It is prudent for the new government and any other rights groups to defend the constitution by referring this matter to the Constitutional Court, which is the highest court in the land, for a definitive and wiser interpretation. Otherwise, in a misguided effort to legalise the new government and sanitise the military intervention, this judgment actually creates a dangerous concoction which could poison the government from the very beginning.