SECRET DEAL: Mugabe “Cleanses” Chiwenga?

By David Coltart

Last night, amongst other things, Robert Mugabe said in his remarkable

address, and I quote, “the Command element (the military) remained

respectful, and comported to the dictates and mores of

constitutionalism”. There is no doubt in my mind that Mugabe in that

statement was trying to cleanse the military by stating that they had

acted legally within the confines of the Constitution. Whether that

was done under duress or as part of a deal in which they will protect

Mugabe and his family in future I do not know. However it is of course

patently false that the military has acted within the “dictates of

constitutionalism”.

Firstly, section 213(2) of the Constitution states that Defence Forces

may only be “deployed in Zimbabwe” with the authority of the

President. That clearly has not happened and still is not happening.

For all the ramblings in Mugabe’s speech not once did he state that

the military have been deployed under his instructions and it is clear

to everyone that they are not acting under his instructions. So the

original deployment was illegal and their continued deployment is illegal.

Secondly, section 50(3) of the Constitution states that any person who

has been detained “who is not brought to court within 48 hours (of

such detention) must be released immediately unless their detention has

earlier been extended by a competent court”. We know that at the very

least Chombo, Kasukuwere and Jonathan Moyo were detained in the early

hours of Wednesday morning. Aside from the fact that the military had

no right to detain these civilians in the first place, they have still

not been brought before a court or released over 5 days since they

were first detained. One might ask Mugabe what aspect of this conduct

comports “to the dictates and mores of constitutionalism”?

The only way the military can now respect constitutionalism is to

return to their barracks, hand the criminal suspects they have in

detention over to the police, and let Parliament do its job.

Now that Mugabe has refused to resign the impeachment process does not

have to take a long time. Section 97 of the Constitution sets out a

three stage process:

1. A simple majority of the total membership of Parliament must

resolve that a question whether the President be removed from office

be investigated;

2. On the passing of this resolution a joint committee of Parliament

must be established comprising all parties represented in the House

with the mandate of investigating the matter, which should allow

Mugabe an opportunity to respond to the allegations;

3. If this committee recommends that the President be removed then a

two thirds majority of the total membership of Parliament must vote to

remove the President.

Section 97 does not state what time frame must be adopted. Indeed if

Parliament chose to, it could move with the same unseemly haste as

displayed at yesterday’s ZANU PF Central Committee meeting and go

through these procedures within a few days. There is nothing in the

Constitution which bars such speed, even though it may be argued that

Parliamentarians have not adequately applied their minds to the

matter. The point is that if we are concerned about constitutionalism

and respect for the rule of law there is a quick way of securing the end of Mugabe’s rule, lawfully.

Once Mugabe has been impeached, then the provisions of section 14 of

the 6th Schedule kick in to determine who becomes President. In terms

of section 14(4) the moment Mugabe loses office, Vice President Mphoko

becomes President until ZANU PF nominates a person in terms of section

14(5) to see out the remainder of Mugabe’s original term of office. Of

course ZANU PF yesterday expelled Mphoko from the party but that has

no bearing on his role as Vice President because in terms of the

Constitution he can only be removed from office if he is either fired

by Mugabe or he himself is impeached in terms of section 97.

But even that should not pose a problem for ZANU PF because section 14

says that ZANU PF can nominate someone else “within ninety days” of

Mugabe’s impeachment – in other words whilst there is a maximum time

limit, there is no minimum time frame. So ZANU PF could literally

notify the Speaker of Parliament of their nominee within minutes of

the final vote taken to remove Mugabe from office, leaving Vice

President Mphoko with the dubious record of holding office as

President for the shortest time in history.

Ironically if Mugabe had resigned last night in the presence of the

Generals that would have smacked of duress and whoever took over would

have been tainted with that illegality. In other words any new

President emerging from that process would be hard pressed to appear

legitimate in the eyes of the world, and such an ascendancy to power

could in my view have been challenged in court. It is still a moot

point whether even an impeachment process will be legal in the context

of the military having effectively suspended the operation of the

Constitution. But that is something that law professors will no doubt argue about for years to come.

So much for the law. The impeachment process I have outlined above

will leave Mnangagwa as President of Zimbabwe, which he will then have

to govern. As we all know the problems are immense. Aside from

anything else the Constitution has been flagrantly disregarded in many

respects since it became law in 2013. If he wants to secure broad

support both domestically and internationally he will have to move

rapidly to observe the existing Constitution fully in letter and spirit. But that is for another day.