BSR: What if there is a pandemic-induced constitutional crisis?

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The weaponization of the law

When Hopewell Chin’ono and Jacob Ngarivhume were first arrested and detained in July 2020, the BSR posited that the two men were being placed at high risk of contracting the coronavirus by the Mnangagwa regime. The two were eventually released without contracting the deadly infection. Chin’ono was arrested again in November 2020. The year began with yet another arrest, the third in 6 months – all of them unjust.

This time, he was arrested together with Job Sikhala and Fadzayi Mahere, both senior officers of the leading opposition party, the MDC Alliance. This is also Sikhala’s second arrest in six months, having been arrested in August 2020, for the same offence that Chin’ono was facing. The current detention is based on the charges that the three published falsehoods in violation of a provision of the Criminal Law Code. However, as has been argued in a recent BSR, the offences under which they are being charged, section 31(a)(iii) of the Criminal Code, does not exist. It was declared void by the Constitutional Court 6 years ago because it violated the right to freedom of expression.

The Constitutional Court has previously addressed the issue of criminalizing the publication of falsehoods. The current Chief Justice was very clear on the scope of the right to free speech and that the government has no role in monitoring truth or criminalizing lies. In the case of Chimakure and others v Attorney General (2013), Deputy Chief Justice Malaba (as he then was) wrote in his judgment:

“The fact that a person has told lies to others on any subject matter should not be of concern to the State.

Government is prohibited from appointing itself as a monitor of truth for people. They are able to do that for themselves through the free exchange of ideas and information on matters of public interest. People must not be denied the right to freely use speech or the press to silence each other and decide what views shall be voiced. What is protected is really the indivisible freedom of everyone to speak even when they may after they have done so be called liars.”

The law treats those who tell the truth and those who tell lies equally. He wrote, “The principle of equality of treatment behind the right [of freedom of expression] assures those who tell lies and those who tell the truth that the guarantee of the right to freedom of expression belongs to them together.” The declaration of the voidness of the provision by the Constitutional Court meant the provision never existed in the first place. In the case of Chin’ono in particular, it is astounding that the Magistrates’ Court remanded him in custody when the only offence under which he is charged does not exist. The detention is unlawful, and he should never have been remanded in custody.

The cases also illustrate the blatant selective application of the law. The allegedly false information which they are accused of having published on social media platforms was also circulated by hundreds, if not thousands of people on Twitter and other social media platforms. Even some persons who are associated with ZANU PF published the same material. Every person who published it did so because they believed it to be true and the circumstances suggested that it was true. Even up to now, no cogent proof has been presented that it was false.

The selective application of the law against a journalist who has been critical of the Mnangagwa regime and two senior opposition figures to the exclusion of all others who published the same information demonstrates the targeted nature of the persecution. The regime is weaponizing the law against political opponents and critics. It justifies its actions on grounds of legality, claiming to be enforcing the law.

Equal protection and benefit of the law

Selective application of the law also violates the trio’s right to equal protection and benefit of the law. Section 56(1) of the Constitution provides that “All persons are equal before the law and have the right to equal protection and benefit of the law.” This consistent with Article 26 of the International Covenant on Civil and Political Rights which provides that,

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.”

Furthermore, Article 3(2) of the African Charter on Human and Peoples’ Rights provides that, “The right to equal protection and benefit of the law means that every person must be treated equally under the law”

These provisions prohibit unfair discrimination of persons, who must all be treated equally under the law. If one is treated differently from others, he or she is being deprived of equal protection and benefit of the law. It is arguable that when someone is arrested and detained where several other persons who did the same thing are not given the same treatment, the person is being unfairly discriminated against and deprived of the right to equal protection and benefit of the law. The same law cannot apply to a few people, leaving others who did the same thing. It would mean that the rest are receiving the protection and benefit of the law, while a few are not and that is also unfair discrimination. Selective application of the law is therefore a violation of both the right to equal protection and benefit of the law and the freedom from unfair discrimination. The inescapable conclusion is that the arrests, detention, and remand of Mahere, Chin’ono, and Sikhala are unconstitutional and illegal.

Unfortunately, weak state institutions, including the police, prosecution, and the magistrates’ court are all enablers of this weaponization and selective application of the law. The three should never have been arrested, let alone detained. They should never have been placed on remand by the magistrates’ court. Chin’ono and Sikhala should never have been denied bail. The reservation of judgment in the bail appeal of Chin’ono is equally unreasonable because it simply means more time for him in jail for an unlawful arrest and detention. Only Fadzayi Mahere was granted bail but not before she had spent a week in the squalid conditions of Chikurubi and upon release, she tested positive for coronavirus.

Weaponizing the virus

Weaponization of the law against political opponents assumes a more sinister dimension during the time of a deadly pandemic. On a normal day, a Zimbabwean prison cell is a terrible place. Prison conditions have been condemned by senior judges following inspection visits. They have been described as cruel, inhumane, and unsuitable for human habitation. They are over-crowded. There is no running water. Lavatories do not work. These deplorable conditions make inmates highly vulnerable to infection and disease. They are a haven for highly infectious diseases like COVID19. There is no social distancing. The inmates have no protective clothing including things as basic as masks. The regime has made no serious efforts to mitigate the spread of the pandemic in prisons.

It is in these conditions that Mahere, Chin’ono, and Sikhala were placed by the Mnangagwa regime. It is not surprising that Mahere tested positive for COVID19 when she was released on bail after a week as an inmate. Sikhala and Chin’ono are still inside and each day they spend in those conditions they are more vulnerable to infection. The regime knows this and wills it to happen.

The courts could mitigate the risk by dealing with their cases expeditiously. But the wheels of justice turn ever so slowly in Zimbabwe, and it is deliberate. On Thursday, a High Court judge who heard Chin’ono’s bail appeal reserved judgment indefinitely. He simply kicked the ball forward, into the unknown, and by so doing, he prolonged the injustice and Chin’ono’s misery. These delays by the judiciary run contract the principles by which judicial officers must perform their duties under the Constitution. Section 165(1) of the Constitution says,

“In exercising judicial authority, members of the judiciary must be guided by the following principles– … (b) justice must not be delayed, and to that end members of the judiciary must perform their judicial duties efficiently and with reasonable promptness; c. the role of the courts is paramount in safeguarding human rights and freedoms and the rule of law”

By delaying decisions, and reserving judgments in bail cases indefinitely, judicial officers are simply prolonging the violation of fundamental rights and freedoms. How bail cases are handled makes a mockery of the fact that the new Constitution specifically provides that bail is a constitutional right. Instead of the state being required to give compelling reasons why bail must be denied, courts are still treating accused persons as if they must prove why they must be given bail. The courts must promote rights and freedoms, not to stifle and frustrate them by creating artificial hurdles and unnecessary delays.

The deliberate exposure of political opponents and critics to the risk of contracting the deadly coronavirus is tantamount to the regime aiming a biological weapon at them. The regime is not only weaponizing the law; it is also weaponizing the coronavirus against opponents and critics. The regime is deliberately and purposefully putting its opponents and critics in harm’s way. This qualifies for “physical or psychological torture or to cruel, inhuman or degrading treatment or punishment” which is prohibited in absolute terms under the Constitution and also under international law.

Pandemic Mishandling – Tragic Failure of Leadership

When Nelson Mandela was asked about the situation in Zimbabwe, he bemoaned the “tragic failure of leadership” in his neighbouring country. That characterization is still pertinent today and has been evident during the pandemic.

It is common cause that the second wave of the pandemic is wreaking more havoc than the first wave last year. The first wave, which was relatively weaker, seems to have lulled the government into a false sense of safety. By the end of 2020, the government and members of the public had dropped their guard. The consequences have been devastating across communities in Zimbabwe, with most victims being the elderly. While the pandemic is a great challenge across the world, countries that have open and competent governments have fared better than countries with dithering governments. The Zimbabwean government falls into the second category.

One problem with the Zimbabwean government is that the President, ministers, and senior government officials failed to lead by example. They made laws which they applied to everyone else except themselves. They forgot that the coronavirus does not know political allegiances or the boundaries between the politically powerful and the weak. They used the pandemic as an excuse to show favours to their favourites. For example, while banning by-elections ostensibly due to the pandemic, they allowed the MDC-T to hold its Extraordinary Congress, a gathering became a super-spreader event and claimed lives.

The flagrant disregard of the pandemic regulations was how ZANU PF bigwigs even held lavish parties in the middle of the pandemic. In one instance, the Minister of Information and Publicity, Monica Mutsvangwa held a birthday party in Harare which was attended by several senior public officials. The Permanent Secretary in her Ministry, Ndavaningi Mangwana even flaunted pictures of the jaunt on social media, oblivious to the wrong message he was sending to citizens. There was no social distancing. They were not wearing masks.

The Minister of Home Affairs, Kazembe Kazembe in charge of enforcing the pandemic regulations was also there. The same people who are responsible for disseminating COVID19 information and enforcing the laws were violating them and there was no penalty for these violations. When the double standards were pointed out, they were defensive. But they were putting themselves and others at risk, apart from setting a poor example to the rest of the citizens. That is where they lost the moral authority over the fight against the pandemic. How could they tell citizens not to violate COVID19 rules when they were trashing them so openly?

As if to reinforce the point of authoritarian tendencies, the regime also applied the law selectively. On New Year’s eve, two Mbare DJs, who ply their trade as Fantan and Levels, held a party for residents at the dilapidated flats commonly referred to as Matapi. This caused public outrage and the two DJs and their promoter was arrested for violating the pandemic regulations. However, it emerged that on the more affluent side of Harare, there had also been lavish parties. One was reportedly hosted by Kuda Tagwirei, a member of the Presidential Advisory Council who is also a wealthy and well-connected business mogul.

It was by no means the only jaunt in town on that night. Yet none of those in these more affluent spots were arrested. It is yet another classic case of the law being selectively applied to members of the poor working class, while members of the wealthy class are protected. However, as things have turned out, while the culprits were not arrested under COVID19 rules because they are politically powerful, the party appears to have been a super-spreader event with several casualties falling prey to the virus.

The points are very simple: even where there are natural disasters, the impact can be mitigated if there is a leadership that knows what it’s doing. Even if they do not have any technical abilities, at least they lead by example. They avoid doing the things that they tell their citizens not to do. If they violate those rules, they take responsibility and resign. In decent democracies where values matter, ministers and senior government officials who wilfully violate pandemic regulations take responsibility for their actions.

If they do not do it themselves, they are forced to own up by an active media and civil society. Unfortunately, when the likes of Mutsvangwa, Kazembe, Mangwana, and other members of the elite establishment blatantly violated their own rules, it was business as usual. Only the virus is reminding these elites that they are not super-human because it does not subscribe to the rules of the authoritarian regime. At the time of writing, one Cabinet Minister, J. B. Matiza, who was pictured with Mutsvangwa, Mangwana, and others was reported to have succumbed to the disease. The jolly image showed that they had no masks and there was no social distancing.

Minister of Foreign Affairs and International Trade S.B Moyo also succumbed to COVID-19 related complications as did Minister of State for Manicaland Provincial Affairs Ellen Gwaradzimba and Minister of Lands, Agriculture and Rural Resettlement Perrance Shiri succumbed to the virus in August 2020. Zimbabwe has lost four ministers to the COVID 19 pandemic. Former heads of the Prisons and Correctional Services who retired last year have also died due to the pandemic, as did former Education Minister, Aeneas Chigwedere.

When the regime banned by-elections it used the pandemic as justification. However, it was insincere and duplicitous because it carried on as if the rules did not apply to ZANU PF and its associates. The regime continued to hold large public gatherings when it was entirely unnecessary. There was no point gathering at the grotesque statue of Mbuya Nehanda. Hosting a National Dress gathering in the middle of a pandemic was unnecessary. Just before Christmas, Mnangagwa was at a rally where hundreds of rural people attended without any social distancing and some without masks.

The regime even allowed its newfound favourite, the MDC-T led by Senator Douglas Mwonzora to hold its Extraordinary Congress during the festive period. It turned out to be a super-spreader event which has resulted in a loss of lives. ZANU PF itself held its Central Committee meeting on 30 December. It is not surprising that big wigs associated with ZANU PF felt they could hold parties on New Year’s Eve. It is said several ZANU PF elites attended these parties, which also turned out to be super-spreader events.

Why were they holding these events in violation of their own rules? It is typical of authoritarian regimes that members have a false sense of superiority. They think the rules they create do not apply to them. It is this false sense of superiority that is also their downfall. They end up believing their lies. They develop a false sense of invincibility. It did not make sense that those with known underlying conditions continued to host public meetings and attend public events where exposure was high. It was not necessary. It is not surprising that they were spending money on building a statue of Mbuya Nehanda in the middle of a pandemic, this, when hospitals lack basic equipment and healthcare staff, are struggling to get PPE.

It was also because of the lackadaisical approach to the pandemic that there were no robust measures concerning inter-country movements over the festive season. This allowed thousands of Zimbabweans living in neighbouring countries, especially South Africa to cross into Zimbabwe with very weak border controls. South Africa had already reported a new, more infectious strain. The crowded conditions at the Beitbridge border post would only have raised the risk of spreading the disease. The virus needs a host to move and the uncontrolled movement of people has arguably been a major factor in the recent surge of infection and deaths.

Preventing these challenges needed serious leadership. But there was no leadership. In a statement on Friday, ZANU PF spokesperson Simona Khaya Moyo said “A wartime approach needs to be applied in battling this deadly pandemic”, attributing the message to his boss, Mnangagwa. But if it is war, then the general abandoned his army during the battle. How else can it make sense when President Mnangagwa took leave in the middle of a deadly pandemic? His two lieutenants issued feeble and unscientific statements and then disappeared from the war-front. Presidential spokesperson George Charamba writing on his Twitter handle @Jamwanda2 said Mnangagwa had “ordered” Chiwenga to go home and rest because he “looked worse for wear”. Both of Mnangagwa’s lieutenants uncharacteristically missed the burial of ZANU PF colleagues who were declared national heroes.

The regime underestimated the security risks posed by the virus. If it did, it would have taken a wholly different approach to the pandemic. There would have been a robust public campaign against unnecessary movement during the festive period especially the mixing of young people and adults and those with underlying conditions who are more vulnerable. Such measures may have mitigated the spread and the magnitude of the loss. However, the regime has failed to lead. When it failed to punish its ministers and senior government officials who violated pandemic rules, the regime lost the moral authority to tell citizens what to do.

Could there be a COVID19-induced constitutional crisis?

The rate of pandemic casualties in Zimbabwe’s political Establishment has caused citizens to ask some difficult but pertinent questions regarding what would happen if the senior leadership of the country becomes incapacitated. This may be a far-fetched scenario in normal times, but considering the devastation that is being caused by the pandemic, nothing is no longer in the realm of the unthinkable. Already, 3 Ministers have died this week, with reports of others who are unwell.

A news report in the Zimbabwe Independent newspaper today may have been downplayed by the government, but before the proverbial ink printing that denial had dried, another Cabinet Minister had succumbed to the pandemic. It cannot be denied that things are not looking well in the higher echelons of power. The road to the National Heroes Acre has never been this busy. There were far too many unnecessary political and elite gatherings that exposed senior government leaders to the pandemic.

In these circumstances, it is important to take a sober look at the current legal provisions in the event of what would be a constitutional crisis. If those in charge of the security interests of the nation were not busy doing scenario-planning considering the current events, they would be neglecting their responsibilities. This is a legal perspective that contributes to that discourse of scenarios. It has to be said that the possibility of a pandemic-induced constitutional crisis should not be discounted, especially if there is no serious planning.

What happens if the President becomes incapacitated or dies?

The relevant provisions are in section 14 of the Sixth Schedule of the Constitution. Some people might make the error of referring to section 101 of the Constitution, which is entitled “Succession in event of death, resignation or incapacity of President or Vice-President”. This provision is currently suspended from operation. It does not apply until after 2023.

As there are two Vice Presidents, in terms of section 14(4)(a) of the Sixth Schedule, in the event of incapacitation or death of the President, the Vice-President who was last nominated to act will be the Acting President until a new President is chosen. If that happened, much will depend on who between VP Chiwenga and VP Mohadi was last nominated as acting President.

According to section 14(4)(b) of the Sixth Schedule, a new President to complete the term of office will be chosen by the political party which the deceased President represented when he or she stood for election. Currently, the party with this right is ZANU PF.

What if the Vice President who was last nominated to act as President is also incapacitated or dies?

There is no specific provision dealing with this scenario, but it is reasonable that the remaining Vice President would be in line to be the acting President while the political party chooses a successor.

What if both Vice Presidents are incapacitated or die?

This extreme scenario was not contemplated in the Constitution. However, the fall-back option would have to be section 100 of the Constitution.

Section 100 deals with a situation where “the President is absent from Zimbabwe or is unable to exercise his or her official functions through illness or any other cause”. Normally, the functions would be exercised by one of the Vice Presidents. However, there is a contingency provision for the situation where “there is no Vice-President who is able to exercise the functions”.

In such a case, the powers will be assumed by a Cabinet Minister who was designated for such an eventuality by the President. It is not known whether there is such a Minister who is designated for such a situation by President Mnangagwa.

However, if there is no such Minister who is designated for that role, in terms of section 100(1)(c.)(ii) the rest of the Cabinet has the power to nominate one of their number to assume those powers.

This Minister will, however, have limited powers unless he is authorized by a resolution of the total number of Cabinet Ministers. These powers are:

“to deploy the Defence Forces; to enter into any international convention, treaty or agreement; to appoint or revoke the appointment of a Vice-President, Minister or Deputy Minister; or to assign or reassign functions to a Vice-President, Minister or Deputy Minister, including, in the case of a Vice-President or Minister, the administration of any Act of Parliament or of any Ministry or department, or to cancel any such assignment of functions.”

If there is a total vacuum in the leadership, Cabinet would have to pass this resolution to allow the Minister to exercise these key presidential functions.

I hasten to add that this is the law. Politically, given that this would be a constitutional crisis, it might require a political solution, which would mean all political actors and power brokers putting their heads together. If the government and political parties are not working on possible scenarios and contingency measures, they are not taking this pandemic and its national security implications seriously enough. The potential for a COVID19-induced constitutional crisis should not be flippantly discounted.