After the Change of Guard in Zimbabwe,Courtroom mail reached out to Lawyers in Zimbabwe on their opinion on   “Post Mugabe Zimbabwe” Tawanda Machaka has this to say

On the 13th of November 2017 the commander of the Zimbabwe Defence Forces (ZDF) General Constantino Chiwenga issued a press conference in terms of which he threatened that the defence forces may ‘step in’ to intervene in the ruling Zanu Pf party’s succession purges including that of the recently fired Emmerson Mnangagwa. This statement from the General is not unprecedented given the history of the military’s meddling in internal party and partisan politics and civilian governance. The ruling Zanu Pf party through its spokesperson and the head of the youth wing condemned the statement from the General as reported in the state media which state media had not published the General’s statement. This was on the 14th of November 2017.What followed was the statement by Major General S.B Moyo on the early hours of the 15th of November 2017 in which the military spokesperson assured the nation that the President was safe and that the armed forces had intervened to ‘target only criminals surrounding the President’. The statement by Major General S.B Moyo was aired via the state media the ZBC and the military assured the nation that as soon as the operation is completed normalcy will return. The Zimbabwean populace demonstrated in favour of the military’s actions on the 18th of November 2017 as thousands of Zimbabweans thronged the streets of Harare, the capital and Bulawayo the second capital. It may also be noted that the  purpose of the demonstrations was to demand President Mugabe’s resignation and to send a clear message to the international community that the military intervention was not a coup d’état which could invite terrible consequences for the country. All the events culminated in the resignation of the President on the 21st day of November 2017.

More on Zimbabwe: Change of Regime in Zimbabwe-It was an ecstatic moment-Bosswell Chideme

Robert Mugabe’s exit,dawn of a new era- Keith Mafadzo Kachambwa

BACKGROUND

In order for us to understand the current situation I digress to offer a legal and political background to Zimbabwe citing the major developments-

  • Zimbabwe is a former British colony having been colonised in the year 1896 and the rebellion by locals then was violently suppressed in an uprising popularly known as the First Chimurenga/Umvukela
  • Resistance to British and white rule continued to grow leading to the formation of the Zimbabwe African People’s Union(ZAPU) around 1960 led by our late Vice President Joshua Nkomo popularly referred to as Father Zimbabwe or Umdala Wethu.In 1963 some nationalists broke away from ZAPU to form the Zimbabwe African National Union(ZANU).
  • ZAPU and ZANU waged a protracted war of liberation commonly referred to as the Second Chimurenga.President Mugabe assumed leadership of ZANU in 1977.
  • Zimbabwe became independent on 18 April 1980 and ZANU had an overwhelming majority in parliament and ZAPU also won  a sizeable number of seats but it should be noted that all the seats won by ZAPU were from the south of the country in the Matabeleland regions where the predominant tribe are the Ndebeles.ZANU’s seats then were predominantly from the Shona tribe.
  • At Independence,a constitution had been agreed upon at the Lancaster House Conference of 1979 and that constitution was in use in Zimbabwe until 2013.
  • In 1980 President Mugabe became the Head of Government as the Prime Minister and the ceremonial Head of State was Canaan Banana.Mr Mugabe invited the late Dr Joshua Nkomo into the government and the two parties agreed to integrity their military wings ZANLA and ZIPRA to form the Zimbabwe National Army.
  • Problems soon arose between ZANU and ZAPU from 1981 and these led to violent confrontations between the two liberation movements and Dr Nkomo was expelled from government. The government intervened militarily by sending armed forces to the Matabeleland region to contain the ‘dissidents’. Suffice to say that the government has been accused of extra judicial killings of innocent civilians and gross human rights abuses perpetrated by the armed forces.
  • The political parties engaged in dialogue leading to the signing of the Unity Accord on 22December 1987.ZANU and ZAPU were merged to form ZANU PF(Patriotic Front).Thereafter Mr Mugabe assumed the position of Executive President and was deputised by DR NKOMO and another vice president from ZANU. The position of Prime Minister was abolished .
  • In 2000 the people of Zimbabwe ,rejected in a referendum ,a draft constitution which was intended to replace the Lancaster House Conference. The Lancaster House Constitution was amended 19times and the crux of the amendments centred on consolidating powers for the President and entrenching one man rule together with redressing the land question amongst the major objectives of the amendments. The rejection of the 2000 draft constitution was championed by the Movement for Democratic Change(MDC) which had been formed in the year1999 led by Morgan Tsvangirai.
  • Post the year 2000 the role the military escalated as the ruling Zanu Pf and Mr Mugabe faced a threat to their hold on power from the vibrant workers backed MDC.Elections became violent and disputed with the MDC accusing the military and other state institutions and veterans of the liberation struggle of orchestrating such rigging and human rights abuses.
  • In the harmonised elections of March 2008 the MDC won more seats that ZANU PF in parliament. Further ,the opposition candidate Mr Tsvangirai obtained more votes that President Mugabe but did not get the required threshold for him to assume office as President. Note that the opposition accused the electoral authorities of manipulating the results to deny Mr Tsvangirai the Presidency as the results were unlawfully delayed by a period exceeding six weeks.
  • In the impending run-off slated for the 27th of June 2008, the role of the military became visible. A violent campaign was waged by ZANU PF fronted by the military and scores of MDC supporters were murdered or tortured or displaced. This forced Mr Tsvangirai to pull out of the run-off and Mr Mugabe won the election with a ‘landslide victory’.
  • This prompted SADC and the international community to intervene leading to the formation of a power sharing arrangement known as the government of national unity (GNU)in February 2009 in which Mr Tsvangirai assumed the position of Prime Minister though he was not the Head of Government. The GNU managed to arrest the hyper inflation which had rendered the local currency moribund and Zimbabwe adopted a multiple currency regime.
  • Military leaders continued to resist Mr Tsvangirai and vowed ‘never to salute anyone without liberation war credentials’. The GNU in spite of major disagreements centred on key reforms of electoral laws and security sector reform managed to usher in a new constitution.Mr Mugabe won a disputed election with an overwhelming majority in July 2013.Mr Tsvangirai attributed Mr Mugabe’s victory to systematic rigging of the vote.
  • As Mr Mugabe formed his government squabbles began to be apparent in the ruling party within itself fuelled by Mr Mugabe’s advanced age and failing health. Factions which had long been presumed to exist in ZANU PF began to be clearly apparent and the two main faction leaders were rumoured to be Dr Joice Mujuru,the then vice president who was fired from government and the party in December 2014 following the grand entry into the political scene of the President’s wife Grace. After the expulsion of Joice Mujuru,a liberation war heroine herself ,Mr Mnangagwa was appointed vice president of the ruling party and the country until his dismissal from both government and the party early November 2017 at the instigation of Mugabe’s wife.It has always been the long held view in Zimbabwe that the leaders of the military preferred Mr Mnangagwa to succeed President Mugabe.

THE CURRENT SITUATION

It is an undeniable fact that Mr Mugabe had presided over Zimbabwe with an iron fist for 37years with the help of the army and other security institutions.Therefore the scenes of jubilation which followed President Mugabe resignation is testament to the relief that the generality of Zimbabweans felt as the despotic strongman was ousted.Questions however arise as to the constitutionality of such actions and the implications for the politics of the country.

The military stated that they were making an intervention in terms of Section 212 of the Constitution of Zimbabwe which Section states that the function of the Defence forces as’’ to protect Zimbabwe its people, its national security and interests and its territorial integrity and to uphold this constitution’’.The argument was that the President Mr Mugabe had surrounded himself with a coterie of criminals who were now running state affairs and causing economic and social unrest.It has also been reported in some publications that the President and his family had been placed under house arrest and that some Ministers had been placed in military custody. What is however clear is that the actions by the military targeted a specific group of people commonly known as the G40 cabal which surrounded the President and were advocating for Grace Mugabe the first lady to take over power from her husband.

On the other hand, in argument it was contended that the army had no role to play in civilian affairs. Reliance was placed on Section 208 which proscribes members of the security services from dabbling in partisan politics or furthering the interests of any political cause. A case can also be made that Section 213 of the Constitution reposes in the President only the power to determine the operational use of the Defence forces. Against this background, deployment of the defence forces without the approval of the President who is the Commander-In-Chief would fall foul of the Constitution. It is also clear that the sole purpose of the military intervention was to aid the deposed Vice President Mnangagwa’s presidential ambitions and it certainly looks as if he will definitely land the Presidency after Mr Mugabe.

The Constitution of the Republic of Zimbabwe in terms of paragraph 14(4) of the sixth schedule lays out the applicable law as to succession of a President. The President leaves office as a result of death, resignation or removal by Parliament. In this case Mr Mugabe resigned on the 21st of November 2017.One can however not tell whether or not such resignation was voluntary though the most logical conclusion would be that it was influenced by the actions of the military forces.Interestingly,the resignation was announced when parliament had already commenced proceedings to impeach the President for various infractions and inability to perform his duties. The resignation effectively halts the impeachment process and brings to an end an era.

The era of Robert Mugabe’s rule cannot be described with certainty. It is one which starts with victory for the people of Zimbabwe at Independence,vasts improvement in the education sector,engaging in the historic land redistribution exercise and some initiatives meant at empowering the people of Zimbabwe.However,on the other hand issues such as a declining economy, a failing health system, massive and rampant corruption and theft of state resources unabated and repression of people’s basic human rights as guaranteed in the constitution will always feature predominantly in any discussion as to the legacy of Mr Mugabe. Further to that ,the role of the military and other critical state institutions in civilian politics has to be addressed so that Zimbabwe becomes the beacon of democracy and the rule of law.Whatever,the merits or demerits of the military intervention in Zimbabwe the said actions by the military gives Zimbabweans hope towards arresting a worsening economic crisis and a chance for rebirth so that Zimbabweans can forge a common path and destiny underlined by unity, democracy  and the rule of law.

Tawanda Machaka is a legal practitioner in Zimbabwe and currently practices law at GS Kashangura Law Chambers. Can be contacted at tmachaka@gsklaw.co.zw or tawandamchk@gmail.com

 

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