Was the army intervention constitutional?
NOTE. Reference is made below to newspaper reports of the judgment by Judge President Chiweshe in this matter. The full judgment will be carried when it becomes available.
Army intervention lawful: High Court
Daily News 25 November 2017
Judge president George Chiweshe has said the takeover of government by the army, which culminated in president Robert Mugabe’s resignation, was lawful. This comes after two citizens approached the High Court arguing that the army’s intervention was necessary on the basis that Mugabe could no longer be in a position to make independent decisions and was now acting under his wife Grace’s influence. General Constantino Chiwenga. The applicants were Joseph Evurath Sibanda and Leonard Chikomba. They were represented by Thabani Mpofu. “Whereupon after reading documents filed of record and hearing counsel: it is declared that: the actions of the second respondent (Constantino Chiwenga) in intervening to stop the takeover of first respondent (Mugabe)’s constitutional functions by those around him are constitutionally permissible and lawful in terms of Section 212 of the Constitution of Zimbabwe in that: “They arrest first respondent’s abdication of constitutional function, and they ensure that non-elected officials do not exercise executive functions which can only be exercised by elected constitutional functionaries. “The actions of the second respondent being constitutionally valid, second respondent has the right to take all such measures and undertake all such acts as will bring the desired end to its intervention,” Chiweshe said. In the case, the court noted that Mugabe was no longer making key government decisions, which were now being made by his wife, Grace and a Zanu PF faction known as the G40. “It is public knowledge that Mrs Mugabe went on a crusade against the country’s former vice president, (Joice) Mujuru telling everyone that she was to be ousted. In the event she was. The decision was clearly not of the first respondent. “Various office holders in the State and the ruling party Zanu PF have lost their positions simply because of the acidic remarks she has made at rallies. Very recently, ...Mnangagwa was relieved of his constitutional position after Mrs Mugabe and her gang had demanded his removal. Barely 24 hours after the call he was unceremoniously dismissed on the basis of falsehoods. “This court is the only authority that can interpret the law and the actions of the ZDF (Zimbabwe Defence Forces) and pronounce itself thereon. For the comfort of the people of Zimbabwe, her neighbours and the international community, a declaration on the validity of the actions of the ZDF ought to be issued. It is imperative that the court’s discretion be exercised in favour of granting the declaratur sought,” the judge noted.
High Court judge Justice George Chiweshe has ruled that “Operation Restore Legacy” which was mounted by the Zimbabwe Defence Forces and resulted in a military takeover of power was Constitutionally permissible and lawful. The military takeover of power ultimately resulted in the resignation of former President Robert Mugabe. Mugabe stepped down on Tuesday, to make way for his former deputy, now President Emmerson Mnangagwa.
In passing judgement, Justice Chiweshe ruled that the military takeover was necessary to prevent unauthorised people from exercising executive function and to stop former president Robert Mugabe’s abdication of his functions. The ruling was made on Friday, in a case which was brought by Joseph Evurath Sibanda and Leonard Chikomba. Then-President Robert Mugabe, the Minister of Defence, Commander Defence Forces of Zimbabwe, and the Attorney General were the First, Second, Third and Fourth Respondents respectively.
Justice Chiweshe in his ruling said:
1. The actions of the Defence Forces (Zimbabwe Defence Forces of Zimbabwe) in intervening to stop the take-over of first respondent’s (Mugabe’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 ensured that non-elected individuals do not exercise executive functions which can only be exercised by elected constitutional functionaries.
2. The actions of the Defence Forces being constitutionally valid, the second respondent has the right to take all such measures and undertake all such acts as will bring the desired end to its intervention.
The case has been overtaken by events as Mugabe had already resigned when the ruling was made, however, it has the effect of legitimising the actions undertaken by the Zimbabwe Defence Forces.
Army intervention constitutionally correct: High Court
Newsday 25 November 2017
THE intervention by the Zimbabwe Defence Forces (ZDF) in Zanu PF’s political squabbles leading to the resignation of former President Robert Mugabe was constitutional, as the military sought to restore order in the country, High Court judge President George Chiweshe has ruled.
Justice Chiweshe’s ruling followed an urgent chamber application by political activists Joseph Evurath Sibanda and Leonard Chikomba, who argued through their lawyer Advocate Thabani Mpofu 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.
“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,” Justice Chiweshe said.
“It is consequently ordered that the actions of the second respondent, being constitutionally valid, second respondent has the right to take all such measures and undertake all such acts as will bring the desired end to its intervention.”
In their heads of argument, the two men said the basis upon which they had made such an application was that on November 14, 2017, the ZDF, acting in accordance with provisions of section 212 of the Constitution, moved in to protect its citizenry, the security of the nation and her interests.
The duo said Mugabe had failed to execute his functions which were now under the mercy of Grace and her G40 cabal.
“Recently, Grace Mugabe, together with a gang going by the moniker G40, had unfortunately captured the first respondent. For that reason, he has been unable to execute his functions and has completely abdicated his functions which were now being exercised by his wife and the gang of 40,” they said.
“First respondent no longer makes key government decisions which are now being made by his wife and the G40. It is public knowledge that Mrs Mugabe went on a crusade against the country’s former Vice-President, Dr Joice Mujuru, telling everyone that she was to be ousted. In the event, she was. The decision was clearly not of the first respondent.”
Mpofu was assisted by Advocate Sylvester Hashiti and C Maunga.
Military intervention legal, court rules
Herald 27 November 2017
The intervention by the military to pacify a deteriorating social, political and economic environment, which subsequently led to the resignation of former President Robert Mugabe, was lawful, the High Court ruled on Saturday.
Judge President George Chiweshe made the ruling following an application by two Zanu-PF parliamentarians, Cde Joseph Sibanda and Cde Leonard Chikomba, seeking an order declaring the military action necessary and legal.
They listed former President Cde Mugabe, the Ministry of Defence and the Attorney-General as respondents.
“The action of the Zimbabwe Defence Forces in intervening to stop the takeover of first respondent (former President Mugabe) constitutional functions by those around him are constitutionally permissible and lawful in terms of Section 212 of the Constitution of Zimbabwe,” said Justice Chiweshe.
He added that the military action was justified in that, “They arrest the first respondents’ abdication of constitutional function and they ensure that non-elected individuals do not exercise executive functions which can only be exercised by elected constitutional functionaries.”
The ruling came a day after the country’s second Executive President Emmerson Mnangagwa took the Oath of Office at a colourful ceremony witnessed by thousands of people from all walks of life, including individuals from across the political divide on Friday.
Cde Mugabe resigned on Tuesday last week after zanu-pf decided to recall him as First Secretary and President of the revolutionary party and as the State President.
When the military intervened a fortnight ago, some legal experts hailed the move, saying the political stabilisation intervention was done in the spirit of national interest and security. They also said the intervention was done in accordance with the provisions of the Constitution and in respect of the sadc and African Union security protocols.
The action, experts said, was done in a way that sought to prevent bloodshed, promote peace and national development. The Zimbabwe Defence Forces (ZDF) insisted that their action did not represent a military takeover of the Government, but was meant to address the political, social and economic situation that could have ended in violent conflict.
In a televised address to the nation on ZBC TV on November 15, ZDF’s Major-General Sibusiso Moyo urged people to go about their normal business, but limit unnecessary movement. He said Cde Mugabe and his family were safe and their security was guaranteed.
The ZDF also called for calm among Zimbabweans. Maj-Gen Moyo assured other arms of the State that their actions were meant to protect their independence. He urged political parties to discourage their members from engaging in violence and urged war veterans to ensure peace and stability in the country.
Advocate Thabani Mpofu assisted by Adv Hashiti instructed by Mr Charles Maunga appeared for the applicants, while Mr M. Ndhlovu and Mr K.T. Mukanganwi represented the respondents.
Military Did Not Stage Coup in Zimbabwe says AU Ambassador to US
Speaking during a meeting titled ‘Zimbabwe: The Way Forward’ convened by VOA Studio 7 in Washington DC last Thursday, the African Union Ambassador to the United States, Dr. Arikana Chihombori Quao, said there was no coup in Zimbabwe as the Zimbabwe Defence Forces (ZDF) used a provision of the nation’s constitution to avert a political crisis. Said Dr Chihombori Quao:
They acted within the constitution to do that. So, there was no coup but there was a provision within the constitution for the army to do that because of the conditions on the ground at that time and they moved in swiftly according to the constitution and address the issue.
We are so glad that Zimbabwe has set an example for Africa how we don’t kill each other. There was no looting, there was no killing. It was a peaceful transition and it’s a good day, it’s a new day in Zimbabwe … From the African Union side we are very proud and pleased that Africa in general and Zimbabwe is leading the way … that we have matured as communities from a political point of view. So, yes Zimbabwe is a success story and I reiterate there was no coup.
Legal charade threatens new government
Excerpt from Alex Magaisa’s Blog Big Saturday Read 25 November 2017
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.