Where to now?: Zim’s constitutional options

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WELL, well if you thought last week’s firing of former vice-president Emmerson Mnangagwa was dramatic, then you had not bargained for this week James Bond-style military intervention in Zimbabwean politics, seizure of bigwigs and barricading of President Robert Mugabe’s Borrowdale mansion “Blue Roof”.

Even the best Hollywood scriptwriters would not have pulled off what the Zimbabwe Defence Forces (ZDF) commanders perfectly scripted and beautifully acted. Who would have imagined Mugabe under military siege and being a prisoner in his home? It would have sounded ridiculous or even stupid to suggest the military — all along Mugabe’s pillar of strength — could have the audacity to besiege his home.

Where are the movie-makers to script and screen this drama? Surely this adventure deserves a blockbuster.

It would be much better than military fiction films; stories about war or battles that can either be historical or fictional.

The Mugabe succession film starts and unfolds across theatrical episodes spanning the recent Zanu PF Youth League interface rallies, hysterical rhetoric against Mnangagwa and the military, the former vice-president’s dismissal from government and expulsion from Zanu PF, his fight or flight dilemma, eventual escape and the subsequent military coup.

Of course, the ZDF says it is not a coup, but an intervention to flush out “criminals” — G40 kingpins — around Mugabe whom it has left as head of state and government, and Commander-in-Chief. Fair enough. I guess it depends of what we mean by a coup, in what context and from what perspective.

A coup or not?

There are many definitions of a coup. In their book How to Stage a Military Coup: From Planning to Execution, David Hebditch and Ken Connor define a coup as:

“A coup d’état is a criminal act of treason, for the plotters have made up their mind to rescind their loyalty to the head of state — to whom they owe their allegiance and employment — and to overthrow that power in an undemocratic, probably violent manner. The conspiracy itself is undemocratic: instead of participating in open political dialogue, the plotters’ means and intentions are jealously guarded.

This disregard for the legitimate political process implies that the assumption of power for oneself is the ultimate goal, not expressing the will of the people, raising their self-esteem, or whatever is told to the public after the fact.”

Various dictionaries define a coup as a sudden and violent overthrow of a government usually by a small group of the military or an army.

Remarkably this is not precisely what the ZDF did. That is why people around the world have been asking what is really going on in Zimbabwe, hence you now have variations of a “soft coup” or “slow motion coup”.

Others simply said, “if it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck”, so by extrapolation if it is executed like a coup, appears like a coup and unfolds like a coup, then it might very well be a coup!
Muckraker is not an expert of coups, so he will not even crack his head on what the International Crisis Group described as “Zimbabwe’s very peculiar coup”. What is important now is not semantics, but how to get out of this situation. There are various options, but replacing a dictator with another dictator is not one of them.

Constitution

Let us get into the constitutionality and legality of what is happening. When ZDF Chief-of-Staff (Quartermaster) Major-General Sibusiso Moyo (a very nice guy under normal circumstances) announced the military takeover, he was clear it is not a coup.

He denied that they were taking over the government: what they were doing, he said, was to contain a degenerating political, social and economic situation which, if not addressed, might result in violent conflict. Moyo’s address followed a statement by his boss General Constantino Chiwenga who had warned of military intervention if the “revolution” is betrayed and purges (read Mnangagwa and his allies) in Zanu PF were not stopped.

Obviously, military intervention in politics and civilian matters in undemocratic and undesirable, but to their credit the ZDF commanders have so far stuck to what they said they intended to do, and have maintained a peaceful environment despite the seizure and brutal beatings of Mugabe’s head of security Albert Ngulube (who is not even G40), Zanu PF Youth League leader Kudzai Chipanga and reportedly Finance minister Ignatius Chombo and Police Commissioner-General Augustine Chihuri.

The options

As Veritas said in its latest Constitutional Watch report, if the military decide that the best way forward for the country is to replace Mugabe with a new President, the steps open to them are as follows:

l Persuade (or pressure) Mugabe to appoint a new Vice-President, assuming the military commanders do not want a new government headed by the current Vice-President. Mugabe would do this in terms of paragraph 14 of the Sixth Schedule to the constitution;

l Persuade or pressure Mugabe to resign — perhaps easier said than done. The President resigns by written notice to the Speaker of Parliament under section 96 of the Constitution, and the Speaker must give public notice of the resignation within 24 hours. Upon his resignation the Vice-President will take over as Acting President under paragraph 14(4) of the Sixth Schedule to the Constitution until the ruling party endorses him or nominates someone else as substantive President, which it will have to do within 90 days under paragraph 14(5);

l Persuade or pressure Mugabe, before resigning, to dismiss his current cabinet and appoint new ministers.
This sounds odd — why should a President who is going to step down appoint a new Cabinet? — but it is necessary because under section 100 of the constitution an Acting President (which the Vice-President will become when Mugabe goes) needs the approval of a majority of existing ministers before he or she can dismiss ministers or appoint new ones. So because of this constitutional quirk, Mugabe will have to appoint at least some of his successor’s ministers.

The other option is to allow Mugabe to continue in office.

As Veritas said, this is a less plausible option. Moyo stated that the military intention was to return Zimbabwe to a dispensation which allows for investment, development and prosperity, and a government headed by Mugabe is unlikely to achieve any of that.

Nevertheless, if the military wants to keep Mugabe in office, though with a clearly nominated successor and with new Vice-Presidents and ministers, they would need to persuade him to take the following steps:

l To dismiss the current Vice-President Phelekezela Mphoko, assuming the military do not want the possibility of a future government headed by him;

l To appoint a new Vice-President; the President can appoint up to two of them under paragraph 14(2) of the Sixth Schedule.  He could also, of course, revoke such an appointment whenever he wished;

l To nominate the new Vice-President, or one of them if there are two, as his successor in the event of his death or retirement. This nomination would not be legally binding, but would have great political significance. It could, however, be revoked by the President whenever he felt he could do so with impunity; and
l Have an independent transitional authority to manage transition.

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