The first part of this series, which was published last week articulated the unconstitutionality of the military intervention in November 2017, which was a coup d'etat.
This week, Part II of the series will interrogate:
- The removal of the late former president Robert Mugabe as Zanu PF first secretary;
- His purported resignation as President of Zimbabwe;
- The installation of Emmerson Mnangagwa (who had been sacked from government and expelled from Zanu PF), as President of Zimbabwe; and
- The subsequent judgements by the High Court of Zimbabwe, which purported to justify the military intervention as constitutional.
Mugabe's unconstitutional sacking While Mugabe had been under house arrest by the military, since the night of November 14, 2017, on November 19, Patrick Chinamasa, the then Zanu PF secretary for legal affairs, presided over a central committee meeting, which purported to expel Mugabe as first secretary and President of Zanu PF.
However, Article 7, Section 38 of the Zanu PF constitution, "Sessions of central committee" states that:
The President and first secretary of the Party or, in his absence, one of the vice-presidents/second secretaries or the national chairperson shall preside over the meeting of the central committee, and at such meeting;
- Decisions of the central committee shall be a simple majority; and
- A majority of the total membership shall form forum a quorum.
The central committee session that expelled Mugabe was therefore unconstitutional, as only the first secretary, Second Secretaries or national chairperson are mandated to preside over such proceedings. Neither the first secretary, second secretary nor the national chairperson presided over the session, thus violating the above section.
In its unconstitutionality, the central committee also gave Mugabe an ultimatum to resign as President of Zimbabwe by November 20, failure of which they would impeach him. Still Mugabe did not resign.
Coerced resignation, house arrest
On November 21 2017, the speaker of parliament read a letter which was said to have been signed by Mugabe, resigning as President of Zimbabwe. This was amidst an impeachment process, which had been commenced by parliament.
Despite being unconstitutionally expelled from Zanu PF, Mugabe had refused to resign as state President. He was later reported to have resigned in fear of the impeachment proceedings, which had been triggered by Parliament.
However, the fact that he had been under house arrest and his Cabinet had been incapacitated, with some under military detention while others had escaped as alluded in the last article, it would be disingenuous to ignore the glaring evidence of duress and undue influence, paused by military coercion while under house arrest.
Mugabe had told Jacob Zuma, then President of South Africa, that he was under house arrest by the military. He would therefore not have resigned out of his own volition, as he genuinely believed and knew the unconstitutionality of his ouster. While this article will not discuss the validity or lack thereof, of the impeachment proceedings, since it did not materialise, it is also a contentious legal issue.
On November 6 2017, a week before the coup, Mnangagwa was sacked by then President Mugabe, from his post as Vice-President of Zimbabwe.
Announcing his sacking, then information and broadcasting services minister Simon Khaya Moyo, in a press statement, said Mnangagwa had been sacked on various charges, including discharging his duties in a manner inconsistent with his official duties, disloyalty, disrespect, deceitfulness, unreliability and lack of probity.
This had followed weeks of being accused by then first lady Grace Mugabe, of undermining, as well as plotting to oust Mugabe.
Following his dismissal, Mnangagwa was invited to attend the Zanu PF politburo and defend himself regarding the allegations for which he had been sacked. He did not attend as he was said to have fled the country.
The politburo resultantly informed the central committee, recommending the expulsion. The central committee, with a majority voted to expel him from the party. Having been expelled, Mnangagwa was therefore no longer a member of Zanu PF.
Mnangagwa was reinstated by an improperly and unconstitutionally convened central committee meeting on November 17, 2017, presided over by Chinamasa, who had no constitutional mandate to do so, under Article 7, Section 38 of the Zanu PF constitution.
As he had been expelled by a constitutionally convened central committee meeting, and had failed to challenge his expulsion when invited to do so, Mnangagwa's reinstatement as Vice-President/second secretary of Zanu PF and subsequently President of Zimbabwe was ultra vires the Zanu PF constitution.
The central committee essentially had neither the power nor mandate to reinstate Mnangagwa without him following due process.
It may be noted that the same central committee, which was whipped into reinstating Mnangagwa, had been the very same one that had voted to expel him two weeks back. This would obviously indicate that there was coercion and involuntary submission by members to an external force, notably the military which was visibly in control of both the state and party, through its detention of Mugabe.
Legal exorbitance, coup sanitisation
The most absurd episode of the whole coup process involved two judgements of the High Court that purported to sanitise the power grab as constitutional, and declaring the sacking of Mnangagwa from Zanu PF as illegal.
Following the success of the military power takeover and the alleged resignation of Mugabe, an urgent chamber application was made by one Joseph Evurath Sibanda and Leonard Chikomba, who argued that Mugabe had failed to control the government, which was now under the leadership of his wife, Grace, and her G40 cabal, hence, the need for the military's intervention.
In his judgement, Judge President, George Chiweshe ruled as follows:
l "Whereupon after reading documents filed of record and hearing counsel, it is declared that: The actions of the second respondent (ZDF) in intervening to stop the take-over of first respondent's (Mugabe) 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 officials do not exercise executive functions, which can only be exercised by elected constitutional functionaries."
There are a number of problems with this judgement. The judge affirmed the military intervention on the basis of Section 212 of the Zimbabwe constitution, which mandates the security forces to protect Zimbabwe, its people, its national security and interests, its territorial integrity and to uphold its constitution.
As articulated in Part I of this series last week, Section 212 of the Zimbabwe constitution is not a stand-alone mandate for the ZDF. It must be read with Section 213(1), which states that only the president has the power to authorise the deployment of the Defence Forces and to determine their operational use.
Even the Commander of the Zimbabwe Defence Forces is not authorised by the constitution to deploy without the authority of the President.
That is why the President is the Commander-in-Chief of the Defence Forces. Mugabe as then president did not authorise the deployment of the ZDF, as he was the actual victim of such deployment. It was therefore ultra vires the constitution.
Also as stated in part I last week, Section 208 of the constitution precludes the military from any involvement in political matters in any way. The Defence Forces are not a fourth pillar of government, which would operate or work independently under the constitution. It is part of the executive, and falls under the Commander-in-Chief, the President. There are only three pillars of the state, namely the executive, the legislature and the judiciary.
These are the institutions which are mandated by the constitution to operate and act independent of each other, with the latter two exercising oversight on the executive. The ZDF, as an arm of the executive, does not have autonomy to operate outside the realm of the executive.
Only parliament is mandated to remove the president under Section 97 for; serious misconduct; failure to obey; uphold or defend the constitution; wilful violation of the constitution; or inability to perform the functions of the office due to physical or mental incapacity. The procedure to be followed is clearly spelt out in the same section.
The judgment by Justice Chiweshe has created a very dangerous precedent in terms of the operational space of the military. It has essentially given the ZDF a blank cheque to grab power whenever they feel that the executive is not acting according to their satisfaction.
They will use Section 212 willy-nilly, and nothing will stop them, unless this irrational judgment is appealed and overturned by the Constitutional Court, since it is currently part of the law. While the order was noted as having been issued by consent, whether Mugabe alluded to it or not, Operation Restore Legacy had been unconstitutional in the first place, and consent would not undo such an illegality.
What is also curious is why Joseph Evurath Sibanda and Leonard Chikomba made the application to justify the actions of the ZDF. There had not been anyone disputing the power grab. Why would anyone make an application to justify that which had not been contested? The only reasonable explanation would be that the actors knew that their operation was unconstitutional, therefore, a court order would act to sanitise the coup.
Another application that was heard before the same Justice Chiweshe, ironically on the same day, was an application by Mnangagwa, for a declaration, that his expulsion as second secretary of Zanu PF was illegal. In his judgment, Justice Chiweshe declared that Mnangagwa had been sacked illegally.
Mnangagwa had been expelled by the central committee of Zanu PF, and he had been offered the option to present his defence, but had fled the country.
It is a general legal principle that before approaching the courts, an aggrieved person must first exhaust internal remedial processes within their institution or organisation. The most convenient precedent is the case in Kudakwashe Bhasikiti vs Zanu PF, where the High Court threw out Bhasikiti's application on the basis of the need to exhaust internal remedial processes.
Both judgments were therefore flawed and have set a precedent to the proportion of the Wednesbury unreasonableness (irrationality).
As the series continues, the first two articles were focussed on the November 2017 power takeover (coup), which was the culmination of protracted and carefully planned and executed hijack of the revolution by elements who had personal interests ahead of the people's agenda.
In the coming articles, the series will revisit the machinations from the period of the liberation struggle, the establishment of an octopus like network of state capture from Independence and the current quagmire the country finds itself in.
Chando is a lawyer, political analyst and commentator on international law and politics.