HARARE – Opposition parties and political activists have dragged President Emmerson Mnangagwa to the Constitutional Court (Con-Court), challenging his legitimacy after coming to power last November with the assistance of the military.
Mnangagwa was sworn in as the president on November 24, 2017 following former president Robert Mugabe’s resignation.
In an application to the Con-Court, a select group of political activists is seeking permission to have direct access to the superior court to make their application.
The applicants are Liberal Democrats, Revolutionary Freedom Fighters, Vusumuzi Sibanda, Linda Masarira, Bongani Nyathi, while the respondents are Mnangagwa, Vice President Constantino Chiwenga, the Zimbabwe Defence Forces (ZDF), speaker of Parliament Jacob Mudenda and Mugabe.
In an affidavit, Sibanda states that on November 13, 2017, Chiwenga — as the then commander of the ZDF held a press conference at the army headquarters in Harare where he lamented the purging of former liberation veterans in Zanu PF.
He goes on to state that Chiwenga threatened that the army would step in the political affairs of Zanu PF to curb the alleged purging of liberation veterans.
“This statement was circulated on social media (video) and the private-owned media,” Sibanda said in an affidavit.
He said on November 14, last year, tankers from the ZDF barricaded some roads leading to the president’s office at Munhumutapa, situated at corner Samora Machel Avenue and Sam Nujoma Street, Simon Vengesai Muzenda Street and Nelson Mandela Avenue.
“Such deployment was inconsistent with Section 213 (1) (a) and (b) of the Constitution of Zimbabwe,” Sibanda said, adding that the power to deploy the army rests with the president.
He said owing to the intervention by the army, several Cabinet ministers, including former Higher and Tertiary Education minister Jonathan Moyo and ex-Public Service minister Patrick Zhuwao fled to neighbouring countries.
“On the same date (November 14, 2017), the then lieutenant general Sibusiso Moyo, a subordinate of second respondent appeared live on Zimbabwe national television and made a statement to the effect that the political dimension of Zimbabwe had changed. This behaviour was in violation of Section 208 (a) and (b) of the Constitution of Zimbabwe.
“He continued to appear on national television assuring legislators, the judiciary and students from tertiary institutions to continue with their day-to-day duties and studies, a clear involvement in political affairs and civilian institutions contrary to Section (4) of the Constitution of Zimbabwe,” the court was told.
He said government had described army’s statements as treasonous at the time.
“I must mention that third respondent (ZDF) acting on instructions of second respondent (Chiwenga) had put the then president (5th respondent) under house arrest at his Borrowdale (home) (commonly known as Blue Roof house),” the court was told.
Sibanda further said that Chiwenga then organised a solidarity march against Mugabe by escorting and bussing war veterans and civilians to the State House, chanting anti-Mugabe songs.
“It is common cause that they are equally thousands of Zimbabweans that took to the streets to celebrate the demise of 5th respondent due to his failures but nonetheless this does not wash or erode the unlawfulness of the military takeover. I believe that unlawful military action in a democratic modern State cannot be laundered to remove the stench of its unlawfulness,” the court heard.
He further said legislators had started convening in the House of Assembly to deliberate on Mugabe’s impeachment when he eventually resigned.
“Soon after the resignation of 5th respondent, 1st respondent was air lifted from exile back to this country by a helicopter belonging to third respondent (ZDF), escorted by third respondent to his inauguration. Such escort at the height of political intervention was evidence to the 1st respondent being the architect of the coup d’ etat,” Sibanda said.
He further said Chiwenga and the ZDF had displayed allegiance to a Zanu PF faction known as Lacoste, which was allegedly led by Mnangagwa. Sibanda said Zimbabwe is a Republic country which has a unitary, democratic and sovereign base as its founding values.
“I do not seek the reversal of what took place leading to the resignations of 5th respondent and inauguration of 1st respondent. I am seeking the restoration of the rule law, the supremacy of the Constitution, the declaration and condemnation of Constitutional infringements and the separation of powers of the executive, the judiciary and the legislature.
“The current scenario in Zimbabwe poses a serious threat to democracy in that, he who led (second respondent) the Defence Forces of Zimbabwe on the 14th — 21st November 2017 was later seen at a Zanu PF extra-ordinary congress in December and was later elevated to the position of vice president and second secretary of Zanu PF. His appointment to vice president was only delayed to allow a smooth resignation from the Defence Forces as commander to assume a new political role. The Constitution frowns at that,” he said.
According to the court papers, after Mugabe’s resignation, some other army officials were appointed as ministers.
The activists now seek an order declaring the actions by the respondents to be declared unconstitutional.
Judge president George Chiweshe has since ruled that the takeover of government by the army, which culminated in Mugabe’s resignation was lawful following an application filed last November by two Zimbabweans who sought an order legitimising intervention by the army.
Chiweshe said the intervention by the army was justified considering that Mugabe was no longer able to execute his duties independently.
“Whereupon after reading documents filed of record and hearing counsel: it is declared that: the actions of the second respondent (Chiwenga) in intervening to stop the takeover of first respondent (Mugabe)’s constitutional functions by those around him are constitutionally permissible and lawful in terms of Section 212 of the Constitution of Zimbabwe in that:
“They arrest first respondent’s abdication of constitutional function, and they ensure that non-elected officials do not exercise executive functions which can only be exercised by elected constitutional functionaries.
“The actions of the second respondent being constitutionally valid, second respondent has the right to take all such measures and undertake all such acts as will bring the desired end to its intervention,” Chiweshe said.