#Coup17: Why the coup still looms large over Zim

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ALTHOUGH the immediate result of the November 2017 coup was the removal of Zimbabwe’s long-serving ruler Robert Mugabe, its effects have been far-reaching. The coup impacted the very nature of the state and its entire foundation, with fundamental ramifications upon legitimacy, apart from setting an ominous precedent for future governments.

In this piece, I reflect on the legacy of the coup and demonstrate why the seed sown in that tumultuous period remains toxic.

The legitimacy of a government is based on the principle of democratic consent. Usually, this consent is drawn from a free, fair and credible election. The antithesis of democratic consent is the usurpation of power through a coup. This is true even when an old-fashioned coup is dressed up clumsily as a “military-assisted transition”.
It was both hilarious and sad at the time to see many people, including respected figures and the media, struggling to call it what it was, a coup, preferring to find refuge behind a variety of meaningless nomenclature. Perhaps it was a fear of being caught on the wrong side of popular opinion, but it also meant booking a place on the wrong side of history.

For my part, such inhibitions were pointless. It was a coup and I was in the minority that called it. The moment rumours of military trucks being seen on the outskirts of Harare emerged on the afternoon of November 13 2017, I sensed a coup was brewing. My view on social media platform Twitter was as follows: “I cannot, for the life of me, fathom why any reasonable person would welcome military rule and its consequences such as martial law. Be careful not to let the genie out of the bottle. Parliament is there. Mobilise it to protect the constitution.”

That was hours before the coup was announced on national television by the then Brigadier-General Sibusiso B Moyo. It was a warning of the consequences of a military coup.

On November 15 2017, as soldiers occupied the streets of Harare and Moyo made the announcement, I wrote in my weekly column, the Big Saturday Read: “It’s a coup in all but name. The soldiers have effectively taken over control of the Zimbabwean state. When you see a man in military fatigues reading news on national television, you know the military has taken over.”

Even then, many were still reluctant to call it a coup.

The predominant justification at the time was that it was necessary for Mugabe to go by whatever means, even if it meant a coup. I understood this overwhelming desire for Mugabe to go. He had stayed for too long and people were totally exasperated. But I remained sceptical that a military coup was the right way to do it, particularly because of the consequences of military rule. No matter how much they would try to dress it up, it would be a highly militarised state. Unsurprisingly, the new government, led by Emmerson Mnangagwa, was handicapped from the beginning by a severe legitimacy deficit and burdened by being beholden to the military.

The authors of the coup were conscious of this legitimacy deficit and this led to ominous consequences for the integrity of the state. It caused attempts to rope in referees such as the judiciary in order to provide a veneer of legitimacy, but in doing so, it also compromised the integrity of that institution. This was evident in two judicial decisions.

One was a dubious court order on the legality of the military deployment (which had been patently illegal because the soldiers had been deployed on the streets without the authority of the Commander-in-Chief. Mugabe was the Commander-in-Chief and there was no way he could have ordered the deployment against his rule. Nevertheless, a court order was disingenuously issued by a High Court judge.

Another legally questionable court order purported to reinstate Mnangagwa to his previous role as vice-president and to reverse the dismissal by Mugabe two weeks earlier. This was designed to pave the way for Mnangagwa’s elevation to the presidency. Ideally, vice-president Phelekezela Mphoko should have become acting president pending the selection of a new president.

These dubious orders were issued by two judges both of whom as war veterans had a military background. It is unlikely that this was a coincidence. The court orders purported to confer a facade of legal legitimacy to the coup. However, they did nothing to cure the glaring legitimacy deficit. They were plain wrong on the law and their procedural regularity is also questionable.

Mnangagwa tried to deflect attention from the legitimacy deficit by making many promises to the citizens and the international community. His chief target audience was the latter, with whom he sought rapprochement after years of acrimonious conflict during the Mugabe era.

A flurry of foreign trips and road shows soon followed in order to sell the idea that Zimbabwe was open for business. The narrative was laced with good words, but it did not survive scrutiny. The then British Ambassador, Catriona Laing, was visibly partial towards the new regime and appeared to take on the role of handholding it towards international acceptance. There was a commonly held myth among his supporters and sympathisers that Mnangagwa was a “pragmatic” leader who apparently “understood business”. It did not take long before the myth began to unravel.

The election nine months later did not resolve the legitimacy deficit. It might have laid the ghosts of November 2017 to rest if it had been conducted in a free and fair manner; if Mnangagwa had undertaken fundamental reforms. However, it was always going to be an uphill task given that the outcome seemed a foregone conclusion the moment the coup happened. I recall writing during the days of the coup that the then forthcoming election would be a charade because the generals had not taken power by force in order to lose it in an election a few months later. I did not believe they would allow a free and fair election that would see them losing. Hopes of a free and fair election were misplaced and over-ambitious.

To be fair, there was some slight improvement in opening up political space around the country and they might just have got away with it. The problem is they were never sure they could win a free and fair election; without some skulduggery. After all, the only type of election Zanu PF is used to is one in which they have an upper hand by deploying foul means. It has never been in its interest to reform political institutions which are supposed to oversee a free and fair election.

Unsurprisingly, they remained unreformed much to the embarrassment of some of their ardent backers in the international community. State media continued to spew Zanu PF propaganda, while the Zimbabwe Electoral Commission (Zec) demonstrated unremitting bias. There was no serious attempt to reform the electoral system.

It was not surprising therefore that in the end the elections proved to be a farce. After the coup, there was only ever going to be one outcome. At least three political figures had warned that the military would not accept any result other than a Mngangagwa win. The general who led the coup told a rally that the coup would only end with the election of Mnangagwa, a sure sign that the election was a controlled affair.

But these shortcomings might have been ignored by parts of the international community believing the election would never been free and fair, but would still be acceptable. This fell apart when the militarised regime resorted to the weapon of choice: violence, to quell election related protests. There was no need to deploy the level of violence used on August 1. It was counterproductive for the regime because it extinguished whatever goodwill remained. But the coup had produced a militarised regime and it behaved according to its nature. It would do so again a few months later after fuel riots.

The coup had had a profound effect on the political referees that are supposed to be neutral and apolitical in elections. All of them, from Zec to the security institutions and the judiciary had all been compromised by the coup. It was the law of the gun that had triumphed, not the rule of law. The rule of law had been marshalled to conform with the demands of the gun, hence the problematic orders that were issued by Justice George Chiweshe.
What happened to the judiciary is not surprising. Judges are often among the first casualties in coups, together with the head of the executive and the national broadcaster. In some cases, judges have been executed. They are placed under immense pressure to comply with the demands of the coup engineers. Oft-times it means acquiescing to the coup, giving it a veneer of legality and legitimacy.

Back in 1965, when Ian Smith declared the independence of Rhodesia, judges had faced a similar conundrum, whether or not to recognise the regime. In the end, the majority decided to acquiesce. Only two judges resigned in protest. Following the 2017 coup, none of the judges walked away.

The acceptance by the High Court that the military’s intervention was lawful, introduced a new dimension to the configuration of the state. Traditionally, the state is divided into three arms: the executive, the legislature and the judiciary. The constitution contains checks and balances between these arms of the state, ensuring that one is able to contain the other to prevent excesses. Now, however, the military had just been recognised as an autonomous arm with the power to hold the other arms of the state accountable. The court order stated that the military action was lawful on the basis that it was meant to protect the constitution.

The state has always been organised so that the military is legally under civilian command, which is why the President is the Commander-in-Chief. On this occasion, this command structure had just been violently breached, but the courts had found it lawful. It set a dangerous precedent, one which could return to haunt this regime or future governments. It is hardly surprising that Mnangagwa’s security has created a fortress around him whenever he appears in public. He appears like a man who is terribly frightened and insecure; always in fear of his life. It is the case when one usurps power. There is always a fear that someone also wants to usurp it.

It is important to restore order and hierarchy to the arms of the state. The military must always remain under the command of civilian rule, not as a separate arm of the state. The notion encouraged by the High Court that the military can be a check in the executive allowing it to intervene to initiate the removal of the executive as it did in No ember 2017 is a dangerous precedent. Those orders were not just bad law; they remain a danger to the integrity of the state, an ever-present threat to the extent that members of the military might see them as legitimation of their intervention in civilian affairs.

A related consequence of the coup, whose effects are enduring, is that with Mnangagwa having been elevated into power not by his own effort but by the military, politically he has been in a power-sharing arrangement with his military allies. Consequently, the state is in the hands of a power-sharing elite pact between the political and military elites. Mnangagwa’s authority as president is subject not just to the legal limitations of the constitution, but to the political limitations of his allies.

Not even the election of 2018 frees him from the grip of the military which gave him power on a silver platter in November 2017. The military and not the people are the guarantors of his authority. That is why on two occasions, it is the military that has sprung to his defence, using live ammunition against protesters, leaving more than 20 people dead.

Like his predecessor, who had kept his power with the backing of the military in 2008, Mnangagwa is at the mercy of the military. Those who conferred power can also withdraw it. It happened to Mugabe in November 2017 and it can happen to him too. The threat of another coup is ever-present, especially as it is well-known that a coup begets a coup.

In conclusion, Zimbabwe remains in a precarious situation because of the severe economic crisis. The conditions that caused the military to intervene and carry out a coup two years ago remain unchanged. There is severe public frustration with the regime because it utterly failed to live up to expectations. Earlier promises have been exposed as meaningless rhetoric. Corruption continues unabated and levels of poverty are rising.

The country remains isolated from the world and there is no prospect of respite from the economic calamity. All these factors are combining to create a perfect storm. The precedent of November 2017 looms large over Zimbabwe. It was a great mistake. I fear there will be a few more great mistakes before we get it right.

Dr Alex Magaisa is a lawyer, academic and former adviser to former prime minister of Zimbabwe, Morgan Tsvangirai.

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