By Jonathan Chando-
Lawyer, Political Analyst and Commentator on International Law and Politics.
A response to Honourable Nelson Chamisa’s assertions that it was not a coup
I have watched the interview of Honourable Nelson Chamisa by Ruvheneko Parirenyatwa on Capitalk, and was left with nothing but the urge to analyse his premise for attributing the takeover by the military as, not a coup, but a miracle, and a combined effort by citizens and the military.
Law is a funny game. It is interpreted in different ways by different people depending on their legal view and ultimate goal. What one may interpret as duly constitutional may be interpreted by another as highly unconstitutional. That is why there comes in the arbiters in the name of magistrates or judges of the court. Even judges themselves tend to differ in their interpretation of the law at hand, depending on the facts brought before them by the legal counsels in the contestation.
In his interview, Honourable Chamisa’s asserts that the ouster of Mugabe was a combined effort of the military and the people of Zimbabwe who marched in protest, calling on Mugabe to resign. He further says it was a miracle and therefore not a coup.
I have tried to comprehend the legal premise which Hon. Chamisa applied in his assertion, but to be honest I have not come up with any. It is my firm belief that Hon Chamisa gave his assertion not from a legal point of view, but from a political point of view. Politics uses a lot of emotions, euphoria and sometimes superstitions, which law does not recognise.
I will first analyse Hon Chamisa’s reasons for it not to have been a coup. I have deliberately used the title Honourable instead of Advocate because I believe he gave the interview and comments, as a politician rather than a lawyer.
Hon Chamisa asserts that what happened was miraculous, therefore it was not a coup. I may have wrongly understood his reasoning, but I will look at the word miraculous and its relation to law. Miracles are not found in statute and therefore do not have space in legal discourse. It is very much a word that can be used in politics as politics includes emotions and superstitions. But in law, there is nothing that justifies miracles as legal.
If one were to analyse the execution of the power takeover from Mugabe, one will definitely see that it was not a miracle. Zimbabweans, in opposition, in ZANU PF and non politically aligned, all wanted Mugabe to go, through whatever means possible, including the military takeover that finally took him out. But the ouster was not a miracle, neither was it constitutional, It was a long term plan which was clinically executed. The only miracle would be that the citizens did not know the plans in their making.
Protests and the removal of the President
Yes the people participated in marches that many believe ousted the President. But what significance did the march have on the resignation.?
If there was any significance, did that make his ouster legal, simply because the citizens wanted him to go? The answer to these questions is a bold no!
Zimbabwe has a constitution, which citizens can use to appoint or disappoint a national President. And whether the citizens participated or not( an assertion I will analyse later in this article), one has to look at the legality of such removal through public protests. The Zimbabwe constitution does not have a provision which allows for the President to be removed by public protests.
Constitutional mandate or lack thereof
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 takeover 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. This long term planning of the military takeover 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, it’s people, it’s 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 takeover of state institutions in the early hours of 15th November 2017. 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 that Section 212 itself 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 takeover, which resulted in the ouster of a President. I’ll 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 Commander Defence Forces in charge of the coup, as ZANU PF 2nd Secretary and VP, 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 Honourable Chamisa’s assertion that there was no coup. The power takeover by the military clearly prejudiced the interests of his party, MDCT, 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 Chinamasa and Mutsvangwa, 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 instigation by the national police. Therefore the capture and continued 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 Commander Defence Forces has the power to deploy the Defence forces, as happened in the power takeover 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 takeover? That is a clear violation of the constitution.
Section 213(2) explains how, only with the authority of the President, security forces maybe 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.
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 Commander Defence Forces’s command before during and after operation restore legacy
There is another aspect of unconstitutionality in the execution of the power takeover. This is found under Section 216 of the Zimbabwe Constitution. The Commander Defence Forces, assumed his role in December 2003, at the retirement of the then CDF, 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. Chiwenga’s two terms expired in December 2013.
The continued annual extension of the term of office of General 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 reappointing him on a yearly basis since 2014, was in violation of the constitution.
Effect of Public protests on the resignation of the President
The march by Zimbabweans was viewed as the real cause for Mugabe to finally throw in the towel, which prompted Honourable Chamisa to believe that Mugabe was ousted by both public protests and military action. Many pundits in Zimbabwe and across the world echoed the march as the final nail on Robert Mugabe’s 37 year reign over Zimbabwe. International news channels commented on the ensuing events, confirming this assertion that the people of Zimbabwe had spoken against their autocratic ruler.
But was it the March by citizens that really pressured Mugabe to stand down? Did Mugabe realise that his subjects had given him the middle finger?
The answer to these questions is in the negative, whether we like it or not. Mugabe was not fazed by the march, as much as it was widely publicised and viewed by many as the real cause of his final departure. Even the march to his blue roof residence, two days later did little to intimidate the tough former guerrilla leader. What then brought Mugabe to his knees and forced him to succumb to the pressure to stand down?
Mugabe had stood his ground for a week, with negotiations for his resignation becoming protracted and uncertain to the extend that it was almost certain this was going to be a fully fledged coup. 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 a different article 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.
In conclusion, given the constitutional provisions above and their violations and or non violations, I find it difficult at law to view the clinical power takeover by the military, which deposed a democratically elected President, and replaced him with his former deputy who had been constitutionally fired from office, as constitutional and not being a coup.
Jonathan Chando is a Lawyer, Political Analyst and Commentator on International Law and Politics.
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