THE International Commission of Jurists (ICJ) says the appointment of military officials to cabinet positions in President Emmerson Mnangagwa’s government undermines the credibility of the military and creates trust issues given that the officials in question directly contributed to former president Robert Mugabe’s removal from power.
By Wongai Zhangazha
This comes after Mnangagwa appointed former Zimbabwe Defence Forces Commander Constantino Chiwenga as one of the new vice-presidents and gave him control of the Defence and War Veterans ministry.
Chiwenga’s appointment to the second most powerful office in the country came after Mnangagwa had earlier appointed former Air Force of Zimbabwe Commander Perence Shiri as Lands, Agriculture and Rural Resettlement minister and former Major-General Sibusiso Moyo as Foreign Affairs and International Trade minister.
In an interview recently, ICJ African director Arnold Tsunga said although there was no legal impediment, given that the military officials had relinquished their army positions, the appointments raised issues of trust.
“However, in the specific context of Zimbabwe, it is noticeable and curious that the military leaders who proclaimed that they were not targeting the removal of President Mugabe from power have now not only directly contributed to his removal from power, but have gone ahead to be the direct beneficiaries through appointments to leadership positions in government,” Tsunga said.
“While it raises no legal issues, it certainly raises credibility and trust issues. This can, however, be easily cured by a full implementation of the constitution and the holding of free, fair and credible elections in 2018 on top of the current obvious priority of fixing the economy.”
While the overthrow of Mugabe could well be considered a coup under commonly accepted definitions, Tsunga said Zimbabwe now needs to restore the rule of law and civilian authority.
“The term ‘coup d’etat’ has no legal definition; it comes from the realm of political science, not law. What happened could well be considered a coup under commonly accepted definitions, but what is important now is restoration of the rule of law and civilian authority,” he said.
“The African Union does not accept unconstitutional changes of government as a matter of AU law and policy and it must be of concern to them that part of the reason of the military operation now seems to have been to apply pressure for a constitutionally elected head of state to relinquish power and for the military to take leadership positions in civilian authority.”
Tsunga hoped that Mnangagwa will fulfil his duties “as the authority in actual” and “effective control of the state” and governance of the country in line with a progressive constitution, adding the supreme governing law had “an expansive bill of rights and specific clauses that enjoin him and all those who wield and exercise governmental power to act according to and in conformity with the constitution”.
Commenting on lawyers who shun human rights cases with political undertones, Tsunga said legal practitioners had a duty to represent everyone who comes into contact with the law notwithstanding their political affiliation.
“The lawyers’ primary duty is to support and strengthen the rule of law and fairness in any trial process. Lawyers cannot and should not be associated with the causes of their clients. We also however understand that in the context of Zimbabwe it was also an issue that the ‘new type of clients’ in the faction of Zanu PF that lost the battle for the control of their party, that they were also not too forthcoming to approach human rights lawyers.
It’s a culture that the country needs to learn and adopt that everyone is entitled to legal representation by lawyers of their choice,” Tsunga said.
He said although the judicial system in Zimbabwe was improving in terms of dealing with human rights issues, there was still room for improvement.
“Generally due process rights and the 48 hour rule is being complied with as a matter of routine in most cases.
This is important to avoid prolonged pre-trial detention, torture, and unfair trials. However, concern was raised during the military intervention that some people were taken outside the protection of the law after being detained by soldiers. Soldiers have no policing responsibilities,” Tsunga said.
The ICJ aims to ensure the progressive development and effective implementation of international human rights and international humanitarian law, secure the realisation of civil, cultural, economic, political and social rights, safeguard the separation of powers; and guarantee the independence of the judiciary and legal profession.
The organisation is composed of 60 eminent judges and lawyers from all regions of the world, and seeks to promote and protect human rights through the rule of law, by using its legal expertise to develop and strengthen national and international justice systems.