Soon after the toppling of former president Robert Mugabe in November last year in a coup and the ascendancy of President Emmerson Mnangagwa, High Court judge Charles Hungwe immediately ruled that the attendant military intervention was constitutional and legal.
By Andrew Kunambura
Hungwe’s controversial ruling raised immediate debate and concerns about judicial independence under the country’s new administration. This was after army chiefs, led by their commander at the time, Vice-President retired General Constantino Chiwenga, deployed tanks, personnel armoured carriers and soldiers on the streets of Harare and placed Mugabe under house arrest, before he was pressured to resign after failed negotiations.
Judge President George Chiweshe had also ruled on a separate matter, saying Mnangagwa’s dismissal by Mugabe was illegal.
The public, analysts and media have been asking that could have occasioned the judgement and rulings others in favour of the military action.
Researchers say this is usually expected and predictable post-coup behaviour by the courts and judges in most countries.
“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,” legal authorities John Hatchard and Tunde Ogowewo ascertained in a revealing study.
In their book, Tackling Unconstitutional Overthrow of Democracies: Emerging Trends in the Commonwealth, Hatchard and Ogowewo developed what they call the “theory of implicit bargaining” in an effort to provide a key to understanding the behaviour of judges in the aftermath of a military coup in a given country. Could the rulings by different judges after Zimbabwe’s coup be conforming to established post-coup behaviour?
Hatchard and Ogowewo hypothesise that in order to understand the nature of the existing jurisprudence on coups, it is important to understand what, in fact, produced it.
The major reason why the judiciary is left intact when a coup takes place is that the power usurpers require judicial declaration to gain a semblance of legitimacy, the researchers say. Thus judges are seen making a litany of rulings which basically border on what utilitarian thinker John Stuart Mill refers to as judicial moralism — a concept of absence of a distinction between morality and justice. The other reason why the judiciary remains intact is that the power usurpers would want to govern in a system which has law and order, even if it means the judicial system is tweaked.
Hatchard and Ogowewo’s theory says that in the aftermath of a coup, judges enter into an implicit bargain with the power-grabbers in order to validate the regime.
This is a reciprocal deal which ensures that, in return, the regime, having sought the collaboration of judges, thereby ensuring immunity from prosecution, ensures that the judges continue enjoying the trappings of office. You naturally see them siding with the coup-plotters — if they want to continue in office, or even preserve their lives in the worst case scenario.
In both principle and application, this theory could explain the way Zimbabwean judges have been behaving of late in the aftermath of the November coup which toppled Mugabe and ushered in a new administration led by his former deputy Emmerson Mnangagwa. There have been several of interesting judgements consistent with the implicit bargain theory.
Chief Justice Luke Malaba made yet another controversial ruling on Monday. Dismissing an application by two fringe political outfits seeking nullification of the inauguration of Mnangagwa in November last year, Malaba said Mugabe’s resignation was free, voluntary and very much in terms of the law.
The Liberal Democrats and Revolutionary Freedom Fighters, as well as activists Bongani Nyathi, Linda Masarira and Vusumuzi Sibanda, sought the green light to contest the legality of the Mnangagwa-led government, arguing that Mugabe tendered his resignation under duress and that the assumption of office by his successor was unconstitutional. They also argued in the court papers that the impeachment process that was instituted prior to the resignation of Mugabe was unlawful and that it served to coerce him to step down.
“The former president’s written notice of resignation speaks for itself. It sets the context in which it was written. He candidly reveals the fact that he had communicated with the Speaker of Parliament at 1353 hours. In the communication, the former president expressed to the speaker his desire to resign from the office of President,” Malaba ruled.
“The speaker must have advised him that for the resignation to have the legal effect of bringing his presidency to an end, it had to be communicated to him by means of a written notice. A written notice of resignation addressed to the speaker and signed by the president, on the face of it, meets the first requirement of constitutional validity.”
Malaba also ruled that Mnangagwa’s rise to power was legal.
“It is common cause that the assumption by the first respondent of the office of President was in accordance with the procedural and substantive requirements of paragraphs 14(4) (b) and 14(5) of the Sixth Schedule to the constitution. A vacancy in the office of the President occurred as a result of the resignation by the former incumbent,” he said.
What this has effectively done is to put to rest questions over Mnangagwa’s legitimacy and legality in the formalistic way, which is precisely why he and the generals kept the judiciary intact during and after the coup. Mnangagwa still faces political legitimacy problems though.
However, this jurisprudential thinking is now being questioned by academics like Hatchard and Ogowewo. In their interesting study, the scholars cite the example of Pakistan where judges took oath under duress to protect the regime of General Pervez Musharraf after he usurped power in a military coup in 1999.
All judges who refused to take oath were dismissed, but those that elected to side with Musharraf went on to produce a bargained judgment that validated his regime.
“Judges and usurpers enter an alliance that involves the latter furnishing the former with the tools they need to justify their decisions. Pakistan’s Supreme Court took the specious reasoning to a new level when it ruled that the coup, which it recognised as valid, was extra-constitutional, not constitutional,” Hatchard and Ogowewo say in their thesis.
Whenever a coup happens and the courts face the question of legitimacy and legality of the new state, judges have heavily relied on the Pure Theory of Law propounded by formidable Austrian jurist and philosopher Hans Kelsen (1881–1973), who maintained that law is basically a scheme of interpretation.
This has provided the leeway’s for some judges to arrive at what have been described as strange decisions. For instance, on Monday, Malaba did not state the principles on which his judgement was premised, although there is no doubt that he probably relied on the doctrine of necessity which, in turn, gives birth to the concepts of de jure or de facto. This relates to the recognition of a new government or regime in an existing state.
The Rhodesian courts during Ian Smith’s rule faced this same question when Smith proclaimed the Unilateral Declaration of Independence (UDI) on November 11, 1965.
As was the case with the November coup last year, the Smith regime had violated the 1961 constitution and was thus not a de jure government. This brought about the world-famous legal case of black nationalist Daniel Madzimbamuto whose detention was challenged on the basis that it was effected by an illegal regime.
There was no basis on which the Smith regime could be a de facto government either. This left the judges in Rhodesia with no option, but rely on the doctrine of necessity.
The doctrine of necessity provides that certain measures can be taken by a regime which is in effective control of a territory to keep essential services running.
However, in the Appellant Division, as the High Court was then called, the court said the detention of Madzimbamuto was necessary to keep essential services such as schools and medical facilities running.
The case, which has attracted decades of global scholarly interest, went all the way through to the United Kingdom’s Privy Council, which was then the highest court of appeal for all British colonies and Commonwealth countries.
The Privy Council ruled that the Smith regime was unconstitutional, going against the local courts which had ruled in its favour, saying it was in effective control of a territory.
However, it must also be noted that Malaba could hardly have relied on this doctrine because it applies in very narrow parameters such as the existence of exceptional circumstances and that there must be no other course of action available except for usurpation of power — which was not the case in November last year. And in any case, such action must be no more than necessary and must not impair citizens’ absolute rights such as the right to life and dignity and freedom from torture—incidents which punctuated the coup, otherwise sanitised as “Operation Restore Legacy”.
The Mnangagwa regime, for its defence, suggests there had been a failure of democracy and governance in the country, especially given the interference of Mugabe’s wife, Grace, in state affairs. Mugabe, they say, had abdicated his constitutional duties and allowed Grace to upsurp power illegally. Their narrative has, however, been badly articulated.
The situation was better captured by former war veterans leader Jabulani Sibanda who described it as a “bedroom coup”.
Whatever the case, the fact is that what Zimbabwe is witnessing right now is an untidy legal rationalisation and sanitisation of the coup and any lawsuit of a similar nature is bound to suffer the same fate.