I dusted off my ancient Webster’s International Dictionary looking for inspiration to an answer for what had taken place on the night of the 14th November, 2017.

A coup d’état is defined in Webster’s as: “a sudden decisive exercise whereby the existing government is subverted; or there is an unexpected measure of state, more or less violent……” Applying the facts to this definition, I deduced that the coup question could be answered persuasively by either a yes or a no answer and both would be right.

News first broke on the night of the 14th November, 2017 that there were tanks on the streets of Harare and that Mr. Mugabe – the world’s oldest head of state at 93 – who was expected to hand over power to his wife ‘Dr’ Grace – was under house arrest. The word on the street was that a coup had taken place.

Given the ‘house arrest’ of our President, that there were tanks on the street and that there was apparent control of ‘Dead BC’ (the ‘affectionately’ named State broadcaster) by our army, it seemed that it was obviously a coup. Then I switched over to a South African news channel. Jacob Zuma reported that he had spoken to our President on the phone and that whilst President Mugabe had confirmed that he was under some sort of “house arrest” he was nevertheless “fine”. That stance did not resonate with the norms of a coup – or did it?

My uncertainty was shared by the African Union head who opined that the situation in Zimbabwe “seemed like a coup”. Meanwhile the military spokesman told us that the President and Commander-in- Chief of the Defence Forces – which is what he was referred to – was “safe”. It was also emphasized that the army had “stepped in” simply to calm political tensions that had been created by the President and his wife, obviously alluding to the recent firing of Vice President Mnangagwa which had been accompanied by vituperative comments about his supposed treasonous designs.

Nonetheless, we were assured by the army spokesman that this army ‘intervention’ was not calculated to wrest power away from civilian rule so that our military could assume power. Instead there was a promise of a return to Constitutional “normalcy” and governance – whatever that meant. For good measure the spokesman mentioned that they were “….only targeting criminals around the President”.

Coup or not, the overwhelming sentiment on the street was that the recent ‘Executive’ excess and political direction taken by our President was not in step with the will of the people. In short the army intervention had the backing of the people. Extraordinarily, the general populous of Harare drove off to work on the 15th November, 2017 like any other day – avoiding crashing into tanks stationed in town. Civilians went about their business with no panic, terror or fear. Soldiers poking their heads from armoured vehicles were greeted with courtesy by the public. Pleasantries were exchanged. Maybe this was not a coup after all.

So with the benefit of time marching on and taking into account that there has now been a definitive change of the Executive, was the intervention by our military Constitutional?
Time lines become useful. My time line is borrowed from the Washington Post.

6th November 2017 – “After a campaign of public insults against Vice President Emmerson Mnangagwa, Mugabe fires his longtime deputy, later accusing him of plotting to take power via witchcraft.”

The first thing that sprang into my mind was: Did the President have power to fire Mnangagwa? I looked to our Constitution. Section 92 of our Constitution provides “for the election of a President and two-Vice Presidents”. I noted that upon election and appointment to office – the tenure of a Vice President is fixed for an elective term of five (5) years and can only be cut short by death, resignation or removal from office (per Section 95 of our Constitution).

I also took note that the removal of a President or Vice President could only take place on account of “serious misconduct”; and/or a “failure to obey, uphold or defend this Constitution”; and/or “an inability to perform the functions of …..office because of physical or mental capacity”. In that event subject to an inquiry set in motion by the Assembly and Senate and further subject to a two thirds resolution from the members of National Assembly and Senate, a Vice President could be removed (see Section 97 – the impeachment provision of our Constitution). In this case, however, Vice President Mnangagwa had not been impeached. He had simply been fired by the President.

The Section 97 impeachment provision for Parliamentary removal of a Vice President did not however, apply for first ten (10) years of our new Constitution. This was because the Sixth Schedule to our Constitution provided that at “the first election and any presidential election within ten years after the first election [up to 2023]” Vice Presidents shall hold office effectively at the pleasure of the President. On this basis President Mugabe was Constitutionally empowered and within his rights to fire Vice President Mnangagwa. It was my take that a court would be hard pressed to intervene and set aside a Presidential prerogative to oust a sitting Vice President. At the pleasure of the President meant just that.

Notwithstanding, my attention has now been drawn to the case of Emmerson Dambudzo Mnangagwa v The Acting President of the Republic of Zimbabwe and Attorney General of Zimbabwe which was filed of record under HC 940/17. An Order by Consent was handed down by Justice George Chiweshe on the 24th November, 2017.

His Order reads: “(1) The dismissal of the applicant by Robert Gabriel Mugabe, the then President of Zimbabwe, on 6 November2017, is null and void and accordingly, of no force or effect.”

Unhappily there is no judgment in place and thus no reasons are proffered for this declaratur. The Order on a stand-alone basis cannot apply as judicial precedent for our future.

In my opinion, this Order could only properly have been given life or substance on political grounds. I can find no objectively ascertainable legal justification for the determination. I say this because if it is accepted that the President is vested with prerogative powers to appoint and fire Vice Presidents, how can a court justifiably interfere with that prerogative?

Returning to my time line –
13th November 2017 – Army Commander Constantino Chiwenga issued a rare public rebuke pointed at Mugabe. He stated that the military would not hesitate to “step in” to calm political tension.

14th November 2017 – armoured personnel carriers were seen on the outskirts of the capital Harare. The military moved in overnight taking control of the state run broadcaster and other strategic places of interest.

15th November 2017 – the military announced that Mugabe was under “house arrest” and that an operation had begun to arrest criminals around him who had apparently harmed the economy. There was talk that Minister Chombo – who had recently been elevated to the Finance Ministry – had been placed under arrest by the army. In addition, our unpopular First Lady- who many feared would replace Mnangagwa – disappeared from view. Rumours abounded that she had fled to Namibia. This turned out to be untrue as she was all along holed up in the “Blue Roof” mansion with her husband and a handful of sympathizers and refugees.

16th November 2017 – the state-run media extraordinarily published photographs of a smiling President Mugabe shaking hands with the Army Commander at Blue Roof. That photo
shoot was amid apparent negotiations for the President’s hoped for exit. The accusations of a coup were firmly shrugged off by the army.

17th November 2017 – the army continued to refer to Mr. Mugabe as President and Commander-in-Chief. He also made his first public appearance at a graduation ceremony for the Open University where he was greeted with polite applause. This fact caused some consternation from the public which was becoming more restive as time marched on.

Through social media – supported later by public media – the War Veterans promoted the idea of a peaceful demonstration against the President’s continued stay in office. This War Veteran impetus received the backing of the military and the newfound rebrand of ZANU PF who no longer had an appetite to retain ties with Mugabe.

18th November 2017, the bulk of the capital’s populace poured into the streets in an anti-Mugabe demonstration. If that had happened days before, there would have been a massive police crackdown. The fact is that on this day, not a policeman could be seen on the streets. There was much jubilation and the protests went off without incident or significant damage to property.

19th November 2017 the ruling party’s Central Committee expelled Mugabe as their party leader. The President was told to step aside or face impeachment.

In a speech on national television later that night, the President (to the surprise of almost everyone in Zimbabwe) made no mention of his expected resignation. Instead he rambled on about difficulties which he would fix and bizarrely indicated that he would preside over the December ZANU PF Congress notwithstanding that he already been dismissed by the party! ‘‘Iwe neni tinebasa! Asante Sana! Good night!’’

20th November 2017 – the Zanu PF Central Committee gave notice that it would begin impeachment proceedings in terms of section 97 of the Constitution.

A number of “Constitutional Experts” gave up their time and said that the impeachment proceedings would likely take several months – without however saying how or on what factual or legal basis there would be a delay. A reading of section 97 of our Constitution shows that there are no time limits for this exercise. In my respectful opinion there would be nothing to prevent such impeachment exercise from being completed in an expedited manner within a day, or at worst a couple of days after the impeachment process had begun.

21st November 2017 – the impeachment proceedings commenced. There was a change in venue which was done in record time, which indicated to me and others a manifest earnestness to get the job done as soon as possible. President Mugabe, however, tendered his written resignation to the Speaker before the vote could be taken. That resignation was read out on the evening of the 21 November to loud cheers, hooting and the sound of vuvuzelas. A spontaneous street party commenced with vigour in the capital city and elsewhere in the country. The UN and other international organizations commended Zimbabweans for their “bloodless” coup or not a coup.

So the question that remains – Was the military constitutionally empowered to intervene in the manner that they did?

We all know or are taken to know that the “Constitution is the supreme law of Zimbabwe”. This means that the President and the Commander of the Army himself and every other citizen of Zimbabwe is bound by the same instrument.

In case number HC 10820/17 – concerning the matter of Joseph Evurath Sibanda and Leonard Leonard Chikomba v President of the Republic of Zimbabwe – Robert Gabriel Mugabe N.O.; Minister of Defence, Commander of the Defence Forces of Zimbabwe and the Attorney-General of Zimbabwe – the Judge President of our High Court Justice Chiweshe handed down an order on the 24th November, 2017 by consent. It was held that the actions of the Defence Forces in intervening to stop the take-over of the 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:

  • They arrest first respondent’s abdication of his constitutional functions, and
  • They ensure that non-elected individuals do not exercise executive functions which can only be exercised by elected constitutional functionaries”.

The supporting facts and application of the law to the facts to justify the Order granted cannot be gleaned from a reading of the Order. There is no judgment with reasons. Leaving this aside what does Section 212 of the Constitution stipulate? This section provides that the function of the defence forces is “to protect Zimbabwe, its people, its national security and interest and its territorial integrity and to uphold this Constitution.” Speaking for myself, I have absolutely no doubt that from a political perspective the actions of the military were and are supported by the majority of the populace.

Who is empowered to deploy troops and tanks onto the streets of Harare? Can the Commander of the Defence Forces take it upon himself to authorise the deployment of the Defence Forces onto the streets of Harare, to effect a house arrest of a President and also target and take into custody individuals who have had a long reign of perceived looting and corruption? Can the Commander constitutionally sequester the Zimbabwe Republic Police to their offices or homes, leaving aside the fact that the result of no police at roadblocks was to the delight of almost every Zimbabwean who had grown tired of the police’s bullying tactics at road blocks?

Much as I would like to support the contention that the actions of the army were in line with Section 212 I cannot reconcile the conduct with the explicit wording of Sections 213 and 214 of our Constitution. Those sections in plain and simple English stipulate that that the authority for the deployment of forces vests with the President and not with the Commander of the Defence Forces. To that end, the actions of General Chiwenga – much as I applaud his motivation and the result – were arguably unconstitutionally albeit with the support of the populace. Having said this, I absolutely accept that there are moments in history where there must be a right for humanitarian intervention – even by an army. I suggest there are moments in time and in consonance with international customary law or even with reference to domestic law and constitutionalism where “the ……principle of force may be used in extreme circumstances to avert a humanitarian disaster.” To that end, no Constitution should be applied in a straight-jacket of grammatical interpretation. A purposive approach must be adopted to the given circumstances.

As recently as 1986 the United Kingdom Foreign Office however, concluded that “The overwhelming majority of contemporary legal opinion comes down against the existence of a right of humanitarian intervention”. That position was predicated on the ground that no right for such intervention is explicitly contained or mentioned in the UN Charter.

From an international and indeed domestic perspective lawyers will still have to wrestle with what might be termed the Guernica Paradox. When is it permissible or “when can it be right to unleash terror on terrorists, to bomb for human rights, to kill to stop crimes against humanity?” (See Crimes Against Humanity – Geoffrey Robertson Q C Penguin 3rd Edition at page 468 ff).

At a domestic level why should we not be allowed to speak with a free voice to legitimately expose Executive excess and bad governance? How can Zimbabwe still have a law on its statute books to muzzle criticism against a sitting President? In case there are readers who think that we don’t have a law in place – take a look at section 33 of the Criminal Law (Codification and Reform) Act Chapter 9: 23 which makes it a criminal offence to make “any statement about or concerning the President with the knowledge ……or risk …that the statement is false and.. may – (i) engender feelings of hostility towards; or cause hatred, contempt or ridicule of the President…”

In the present Zimbabwean context our former President arguably –acted for his own selfish endeavours in opposition to the general will of the people by firing his perceived ‘enemies’ or those in the so-called Lacoste camp who were perceived not to support him or his wife. His conduct manifested itself in a variety of measures some of which still need to be investigated and answers obtained. His attack on perceived enemies – targeted our War Veterans who spoke out last year and published a “Communiqué” criticizing his governance excesses and/or abuses. As a result many War Veterans were wrongly arrested. He demonstrably acted unconstitutionally in firing our Prosecutor General shortly before the “coup”.

In this regard, this firm was seized with and played a part in clawing back the rule of law rather than rule by law in favour of the office of the Prosecutor-General. H & B chose to support the integrity and independence of that office against the backdrop of what was seen to be an excessive and unconstitutional exercise of Executive power by the President.

Justice Chigumba details the ultra vires nature of the power wielded by the President in her 20 page judgment in the matter between Zimbabwe Lawyers for Human Rights v Robert Gabriel Mugabe N O ; Judicial Service Commission; Ray Hemington Goba and the Minister of Justice Legal and Parliamentary Affairs NO under HC 788/2017. The judgment was handed down on the 22nd November, 2017.

I submit there is also empirical evidence before our very eyes to establish that an egregious amount of wealth and assets has been wrongly amassed. I suggest in line with the tenets of Section 3 of our Constitution that there has to some measure of reparation and redress for assets and wealth improperly realized rather than sweeping this under the carpet for politically expedient or let ‘bygones be bygones’ forgiveness reasons. It follows that there is harder work yet for Zimbabweans to demand and have accountability from those who have wielded or continue to wield power. Should we – as a nation – be bound by the alleged $10 million deal that was apparently struck by the ‘military’ and negotiators for the Mugabe family?

The rule of law and not rule by law requires to be restored. Fundamental human rights and freedoms, good governance, gender equality, transparency, justice, accountability and responsiveness must be given full expression. These are the pressing challenges for a new Government – moratoriums aside.

I suggest we have a tool box and necessary tools – under our Constitution – to begin to achieve our founding values and principles in line with section 3 of our Constitution.

At least we have the opportunity and wiggle room to open the lid on accountability. And the sooner this is done, the better. If we do so this will or should be beneficial for all of us no matter what station we hold in life – whether we live in a palace or a hut.

Harare, 20 December 2017

David Drury
Litigation Department
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