Jonathan Chando:Political analyst
WHEN the Zimbabwe Defence Forces grabbed power on November 15, 2017, they coined their take-over “Operation Restore Legacy”.
At the time, they told the nation that they wanted to round up and arrest the criminals around the president. But was it an operation to arrest the criminals around former president Robert Mugabe? The answer to this begging question is negative. It has since emerged in the eyes of Zimbabweans that it was actually the criminals grabbing power to protect themselves and enhance their looting with impunity.
This article is the first of a series of articles which will chronicle how Zimbabwe’s revolutionary liberation struggle was hijacked from under the noses of gallant and dedicated liberation fighters and resultantly circumvented the people’s cause.
To start with, in this issue, the article will interrogate the constitutionality or lack thereof, of the November 2017 power grab by the military.
In the succeeding articles, the series will chronicle how the war of liberation was hijacked well before Zimbabwe’s Independence, and the machinations from Independence to the current catastrophic state of affairs.
The military take-over
According to Section 96(1) of the constitution, the president may resign by written notice to the Speaker of Parliament, who must give public notice as soon as possible. Mugabe definitely resigned and the resignation was forwarded to the Speaker of Parliament. But was this resignation voluntary or coerced? This will be analysed further in this article.
It is clear that this military take-over was not planned and executed with haste, in rapid reaction to the situation on the ground. It was well-planned and the groundwork executed over a long period of time, not even months, but years, decades even, as this series will explore. This long-term planning of the military take-over did not have the participation of the citizens at all. The people were roped in last minute to sanitise a long-planned power grab by particular individuals who used state resources and public anger to achieve their personal goals. And that does not make Mugabe’s ouster legal, much as the public wanted him gone.
Section 212 of the Zimbabwe constitution mandates the security forces to protect Zimbabwe, its people, its national security and interests, its territorial integrity and to uphold its constitution. This is the mandate the military quoted as the basis for their actions in the take-over of state institutions in the early hours of November 15 2017. It is also the section of the constitution quoted by High Court Judge, George Chiweshe, when he upheld the power take-over by the military in an application by Joseph Evurath Sibanda and Leonard Chikomba, (which will be interrogated in the next article). This mandate does come with restrictive measures that control how the military must operate in carrying out its mandate. It is not a free unfettered operation for the military.
Within the same Section 212, comes the initial restriction for the military, which is the need for upholding the constitution. This means that, while executing their mandate, the security forces, must abide by other sections of the same constitution, limiting how they must operate. This restrictive regime on the conduct of the security services in upholding the constitution is consolidated by Section 208(1) which clearly states that members of the security services must act in accordance with this constitution and in accordance with the law.
Section 208(2) further states that neither the security services nor any of their members may, in the exercise of their functions:
(a) act in a partisan manner;
(b) further the interests of any political party or cause, or;
(c) prejudice the lawful interests of any political party or cause; or
(d) violate the fundamental rights or freedoms of any person.
This section of the constitution is the most interesting and most effective in determining the legality or lack thereof, of the power take-over, which resulted in the ouster of a president. This article will look at each part of the section to analyse how it affects the legality of what happened.
Part (a): did the security services act in a partisan manner?
The answer is a clear yes. The army removed the leader of a party and installed another who had been fired from the party, Zanu PF. This was clearly a factional feud between factions within Zanu PF, and the security services acted in violation of the constitution by intervening in party politics. Regardless of the fact that members of the security services, having been part of Zanu PF (Zanla/Zipra) during the liberation struggle, they swore an oath of allegiance to uphold the constitution, and not play partisan politics. Therefore they wilfully violated the constitution by engaging in party factional politics.
Part (b): did the security services further the interests of a political party or cause?
The answer again is yes. They furthered the interests of Zanu PF in its succession battles. The resultant retirement and appointment of the Commander Zimbabwe Defence Forces (ZDF) in charge of the coup, as Zanu PF second secretary and vice-president, gives credence to the reality that the security services were used to act in furtherance of party and personal interests.
Part (c): did the security services prejudice the lawful interests of any political party?
The answer is yes. This is where I find it hard to understand MDC’s participation in the coup d’état, even though it is a lawyer-full party. The power take-over by the military clearly prejudiced the interests of the MDC, not to mention all other opposition parties.
While all parties rallied together in marching for the resignation of Mugabe, they were of the belief that it was a national cause, but the reality, as then stated by Patrick Chinamasa and Christopher Mutsvangwa, was that it was a factional issue for Zanu PF, confirmed by the installation of the new Zanu PF government.
Part (d): did the security services violate the fundamental rights and freedoms of any person?
The answer is yes. In their operation restore legacy, the security services indicated that they were targeting criminals around the then president. True to their word, they captured members of Mugabe’s cabinet and party, aligned to the G40 faction of Zanu PF, kept them under military detention for more than a week, and only released them into police custody after their power take-over was complete.
The security services are not mandated by the constitution to arrest any citizen whatsoever, without assistance or at the request of the national police.
Therefore, the capture and detention of these members was ultra vires Part (d) of Section 208 of the constitution.
It may also be noted that while targeting members of the G40, the security services caused the incapacitation of the executive, in particular cabinet, to exercise its functions but at the same time claimed that the president was in control. How could the president be in control while his cabinet was prevented from exercising its constitutional functions?
Moving on, Section 213 determines when, how, where and why the security services may deploy within the country.
Section 213(1) states that only the president has the power to authorise the deployment of the defence forces and to determine their operational use. This clearly states that apart from the president, no one, not even the ZDF commander has the power to deploy the defence forces, as happened in the power take-over code named operation restore legacy.
The nation and the world at large was assured that the president was in control during this period, yet the president did not order the deployment of the forces that put him under house arrest. How did the security services deploy around the country without the authority of the president, whom they continuously referred to as their commander-in-chief and still in charge, at the time of their execution of the power take-over? That is a clear violation of the constitution.
Section 213(2) explains how, only with the authority of the president, security forces may be deployed, in defence of Zimbabwe, in support of the police service in the maintenance of public order or in support of the police service or other civilian services in the event of an emergency or disaster. Section 213(2) must be read together with Section 212, but the military, circumvented this in its execution of the coup d’état.
I have already noted that the ZDF were not deployed with the authority of the president. Were the ZDF deployed in support of the police service in the maintenance of public order? The answer is no. Firstly the police service became the first casualty of operation restore legacy as they were incapacitated. So, there was no question of supporting the police service.
Secondly, there had not been any public disorder that required the police to maintain any public order which would then require the support of the ZDF.
Thirdly, did the ZDF deploy in support of the police service in a public emergency? The answer is no. No public emergency had occurred warranting the ZDF to deploy, in support of the police, with or without the authority of the president.
Validity of the ZDF commander’s command before, during and after Operation Restore Legacy
There is another aspect of unconstitutionality in the execution of the power take-over. This is found under Section 216 of the Zimbabwe constitution. The ZDF commander assumed his role in December 2003, at the retirement of the then commander General Vitalis Musungwa Zvinavashe.
Under Section 216(3), commanders of the defence forces and commanders of Services of the Defence Forces are appointed for a term of not more than five years and a person must not serve in any one of those offices for more than two terms. General Constantino Chiwenga’s two terms expired in December 2013.
The continued annual extension of the term of office of Chiwenga beyond December 2013, has all along been unconstitutional, as it violated the constitution in that he had served his two terms. This therefore means that his command of the ZDF before, during and after the execution of Operation Restore Legacy, was ultra vires the constitution as he was illegal as commander. The president, by re-appointing him on a yearly basis since 2014, was in violation of the constitution.
While the negotiations were going on, a separate assault on Mugabe was launched by Zanu PF to expel him from his post as first secretary and president of Zanu PF and subsequently inform the Speaker of Parliament of the decision. Parliament then initiated impeachment proceedings against Mugabe.
The validity or lack thereof, of the so publicised impeachment process which was touted to have triggered Mugabe’s sudden resignation, will be discussed in the succeeding articles as it is worth an article of its own. However, the real cause of Mugabe’s resignation was neither the public protests nor the touted impeachment process. It was the threat proffered by the security services, which the public may never get to know.
Given the constitutional provisions above and their violations and or non-violations, it is difficult at law to view the clinical power take-over by the military, which deposed Mugabe and replaced him with his former deputy who had been fired from office, as constitutional and not being a coup. It was a de facto coup d’état.
l The next article will interrogate the purported resignation of Mugabe and the process of his removal as Zanu PF first secretary and president, and the High Court declaration by Justice George Chiweshe that the military intervention was lawful.
Chando is a lawyer, political analyst and commentator on International Law and Politics. — email@example.com