Coup: Of usurpers and judges

WHENEVER a military coup takes place anywhere in the world, as it did in Zimbabwe last November, the pillars of state — the executive, legislature and judiciary — are usually shaken to their foundations or collapsed. It also has a chilling effect on the fourth estate — the media.

Editor’s Memo,Dumisani Muleya

Typically the executive and the legislature become the first victims, as power becomes shared between the junta and judges. Even if they remain intact they become pliable to the usurpers; controversial or illegitimate claimants to power. The judiciary’s role after any coup is particularly critical. That is also the case in Zimbabwe.

Soon after President Emmerson Mnangagwa took over power on November 24 last year — three days after former president Robert Mugabe was pressured under house arrest by the army and through threats of a Gaddafi-style execution by angry mobs to resign — he did what usurpers usually do: use judges to ensure legal legitimacy.

Political legitimacy — Mnangagwa’s holy grail — is a different issue and a story for another day.

Some usurpers just amend the constitution, change the law and even cashier judges to protect themselves against prosecution for treason, incarceration or execution. In Zimbabwe it was Judge President George Chiweshe who first handled the coup issue. He ruled that former president Robert Mugabe’s defenestration of his then deputy Mnangagwa prior to his return to seize power was illegal.

High Court judge Justice Charles Hungwe also ruled that, effectively, the subsequent military intervention — coup — after Mnangagwa’s firing was legal and legitimate.
This week Chief Justice Luke Malaba dismissed an application by two fringe political outfits seeking nullification of Mnangagwa’s rise to power and incumbency which they had argued was unconstitutional and illegal. Malaba said Mnangagwa’s ascendancy was legal and procedural as Mugabe’s resignation was free, voluntary and in terms of the law.
Most judges rely on the dodgy Dosso jurisprudence which can be traced to the judgement of the Pakistan Supreme Court in State v Dosso, a decision that has been termed “a carte blanche for treasonable conduct”. Local judges almost certainly relied on this and the doctrine of necessity to justify their decisions.

There is a rich history of case law within the Commonwealth, where there have been legal challenges to the unconstitutional overthrow of elected governments. These cases and incisive commentary on them are set out in an interesting book by Professor John Hatchard and Dr Tunde Ogowewo titled Tackling Unconstitutional Overthrow of Democracies: Emerging Trends in the Commonwealth. Hatchard and Ogowewo develop a new theoretical construct – “the implicit bargain theory” — to explain the existing jurisprudence on coups. Their study critically examines the evolution of judicial decisions on the subject. In doing so, it also evaluates jurisprudential theories underpinning these judgements.

The position of the Commonwealth, especially given its strong stance against unconstitutional overthrow of governments, is clearly articulated. Ironically, the Harare Commonwealth Declaration of 1991 and the subsequent Millbrook Commonwealth Action Programme on the Harare Declaration (1995), cite coups as particularly grave violations of their principles. Zimbabwe is going back to the Commonwealth after pulling out over a decade ago.

After the Harare coup, judges were on the frontline of events and debate. Hatchard and Ogowewo explain why.

“To understand the nature of the existing jurisprudence on coups it is important to understand what in fact produced it,” Hatchard and Ogowewo write.
“For this, a new theoretical construct — “the implicit bargain theory” — is introduced to tell the story.

“Judges are important players when there is a coup. The immediate effect of a coup is to eliminate two branches of government — the executive and the legislature. The judiciary is left intact.

“The judiciary is left intact for two reasons. First, because judicial affirmation of the regime of usurpers confers legitimacy on the usurpers. Second, because even usurpers need to govern in a system characterised by law and order, and an existing judicial system — even if tweaked — is indispensable.”