HomeOpinionHow the coup impacted our constitutional order

How the coup impacted our constitutional order

THIS month marks one year after the removal of former president Robert Mugabe from power in a process that was initiated and driven by the military.

Alex Magaisa

Desperate to see former president Robert Mugabe go, the public were uninterested to pursue due constitutional processes.

The impact and implications of those events are too important to be left to history books. The removal of Mugabe must be regarded as a landmark moment in our history not only because it ended a long and influential political career, but also because, and more importantly, it fundamentally altered the constitutional order and whose implications will be felt for generations to come.

Was it a coup?

From day one, there has been controversy over whether or not the removal of Mugabe constituted a coup. One school of thought is that it was undoubtedly a coup. Another frames it as a “military-assisted transition”.

It was never in doubt to me that it was a coup. Reference to it as a “military-assisted transition” was a creative but ultimately futile attempt to sugar-coat it for various reasons.

For some, especially in the media and international community, to call it a coup would have been an admission of illegality and therefore created a different narrative which would demand action on their part.

However, the target of the coup, Mugabe, had become deeply unpopular or difficult to support. There was a general consensus that he had overstayed in office. The fact that he was departing unlawfully was accepted as long as it appeared peaceful. The authors of the coup took extreme care to avoid maintain the fallacy that it was not a coup. They knew an open coup would be resisted on the continent. However, while in the end Mugabe resigned and a civilian, Emmerson Mnangagwa, was installed as President, it was the military that had initiated and driven the process of his removal. It can be said without a shadow of doubt that there was a direct causal connection between the military action which started on November 14 and Mugabe’s resignation a week later.

He would not have tendered his resignation and parliament would not have commenced impeachment proceedings had the military not launched the offensive against him.

Coups beget coups

The removal of Mugabe set a new and important precedent. It was not the first time that a serving president had left office since 1980. Former president Canaan Banana, whose role under the Westminster-style system of government was ceremonial, had left his role in more pleasant circumstances following a constitutional amendment which created an executive presidency in 1987.

However, Mugabe’s removal was the first of its kind, where a president was literally forced to resign by military action and a threat of impeachment by parliament. The framing of the removal as a coup matters because it sets a precedent with potential to haunt the nation. The fact that it was condoned keeps alive the possibility that it could happen again. Current and future leaders will do well to heed the old cliché that coups beget coups.

Undermining constitutional order

One of the key elements of the coup was that the military deployment was done in breach of the nation’s constitution. The constitution gives exclusive power to the President, as Commander-in-Chief of the Defence Forces to deploy troops in or outside the country. When the tanks rolled into Harare, it was not on the then president’s command. It could not have been because the military action was against him.

If people thought that was unimportant, the events of August 1 2018, two days after the election, are a stark reminder of the critical significance of that precedent.

A Commission of Inquiry has been set up to determine what happened on August 1 when the deployment led to the killing of civilian protestors and by-standers allegedly at the hands of the military.

One issue arising is: who gave the order for military deployment, if not the President?

The irony is that if the deployment happened without the President’s orders, it would have mimicked the deployment during the coup last November, because that too happened without the President’s order. This would mean the military were simply following a familiar path, suggesting that unless drastic measures are taken, this could recur.

Role of the judiciary

The removal of Mugabe was also remarkable for the role of the judiciary in sanitising the coup. Three cases, two during the coup and a third just before the general elections, illustrate this point. However, for reasons of space, I will focus on one.

A case was brought by two litigants during the week of the coup seeking a declaration from the High Court that the military action was constitutional and lawful. The matter came before High Court Judge President, Justice George Chiweshe (a former head of the judicial arm of the military), who issued an order confirming the legality and constitutionality of the military action.

He justified the military action on the basis that the military was observing its duty to uphold the constitution which was imperilled by Mugabe’s abdication of his responsibilities.

However, the order was seriously flawed.

First, the judge overlooked the fact that the High Court had no jurisdiction to make a determination on the constitutionality of the President’s conduct. Under the constitution, only the Constitutional Court can make that determination. Second, the judge ignored a provision of the constitution which gives exclusive power to the President to deploy soldiers (section 214), which had not happened.

How could the deployment have been lawful and constitutional if it was not authorised by the President? It was a serious contradiction to say the military were upholding the constitution when they were breaching it so blatantly.

In a later case, brought by activists who sought to challenge Mugabe’s removal, Chief Justice Luke Malaba gave an opinion that Mugabe had resigned voluntarily. The Chief Justice erroneously gave validation to Judge Chiweshe’s order in the above matter because that order was invalid as it had not been confirmed by the Constitutional Court as required by law. Secondly, the order was flawed because the High Court had exceeded its jurisdiction.

The point of the court orders was essentially to sanitise the military action so that it would have a veneer of legality. The judiciary was essentially sanitising the military coup, not very different from the way their Rhodesian predecessors had also sanitised Ian Smith’s Unilateral Declaration of Independence on November 11 1965.

Altered constitutional order

However, confirmation of the legality of military action had a more profound impact on the foundation of the constitutional order. Traditionally, the constitutional order recognises three arms of the state, namely the executive, legislature and the judiciary, in line with the principle of the separation of powers.

Now, however, the judge added the military as a separate and independent arm of the State with power to hold the executive in check. The military asserted and the court accepted this role by citing a provision of the constitution (section 212) which requires the military to uphold the constitution.
This is an erroneous interpretation of the provision because it conflicts with the constitutionally-enshrined principle that the military should not interfere in civilian politics.

Furthermore, if this interpretation of the constitution were accurate, it would give powers of intervention to many bodies that are required by law to uphold the constitution, which would lead to absurdities.

To restore the constitutional order, it must be made clear that there are only three arms of the state and the rest operate within these confines as limited by law. The alternative of allowing the military to assert itself as it did in November 2017 using section 212 of the constitution poses a serious risk to the current and future governments and the constitutional order.

Parliament as mere puppet

Finally, parliament was important in that it played the role of hangman regarding Mugabe’s political career. It was the threat of impeachment and the fact that proceedings had commenced that forced Mugabe to resign. However, the role of parliament should not be exaggerated. It was part of the chain of events triggered by the military action and would not have happened but for such intervention. This is why the impeachment proceedings are part of the processes that collectively make up the coup in which the military was the principal author.

Even a week before the coup happened, impeachment proceedings would have been unthinkable. If anything, Zanu PF politicians were backing anything that Mugabe wanted, including the firing of Mnangagwa.

An MDC MP, James Maridadi, had tried a few years before without success to raise a motion for Mugabe’s impeachment. The only reason the impeachment proceedings began was that Zanu PF politicians were now sure that with the military backing it was politically safe to go against their long-time ruler.

Thus, in reality, parliament was more of a puppet of the military than a principal actor in the removal proceedings. The MPs were dancing to a tune dictated by the military. The removal of Mugabe is therefore by no means an indication of the newfound confidence of parliament that it has power to hold the executive to account. It would not have happened but for the military action.

More worryingly, though, having got an opportunity to use its power to remove a president, parliament was so overzealous that it was prepared to forgo due process. Impeachment proceedings mean the accused president must be given an opportunity to be heard. However, there were clear indications that MPs wanted to “fast-track” the process and were not concerned that Mugabe had to be given a chance to be heard and to respond. The coup was also a reminder of the risk of the tyranny of the majority. Desperate to see Mugabe go, some members of the public were also unconcerned by due process. Even those who professed to defend the rule of law and constitutionalism were ready to abandon such ideals in favour of the immediate political goal of removing Mugabe.

As a constitutionalist and advocate of constitutionalism, I did not agree with that approach. It does not matter whether or not we like a person.

Fundamental rights and freedoms must be upheld at all times and this is why I argued that despicable as rule had been, Mugabe was still entitled to due process in the impeachment proceedings.

Much has happened since the coup and, while it was good to see Mugabe leave, I remain concerned by the impact of the coup on the country’s constitutional order and that another may happen again, especially because the last was given a veneer of legality.

Magaisa teaches law at Kent Law School, University of Kent. He has recently been a Reagan-Fascell fellow at the National Endowment for Democracy in Washington DC and a poynter fellow at Yale University, New Haven. He is also a former advisor to Morgan Tsvangirai and advisor to the constitution-making process and writes a weekly blog: www.bigsr.co.uk

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