Fears over constitutional crisis

FEARS abound that Zimbabwe could plunge into a constitutional crisis in the wake of law enforcement agents deliberately trembling on the rule of law by fragrantly defying court orders, the Financial Gazette can report.

A constitutional crisis may happen when one or more parties to a dispute willfully choose to violate a provision of a constitution or an unwritten constitutional convention; or when the disputants disagree over the interpretation of such a provision or convention, making it difficult or impossible for a legal system’s constitution or other basic principles of operation to resolve the impasse.

With the country seemingly on tenterhooks, as pressure piles up on President Robert Mugabe to arrest the country’s economic freefall, as well as rein-in the police currently being accused of human rights abuses when breaking up protests, observers are wary that the ZANU-PF government might indeed end up evoking a state of emergency to deal with the plague of protests afflicting the country.

Many, however, feel this last desperate route could worsen an already potentially explosive situation.

Nearly a 100 people were arrested in the past week following demonstrations which rocked Harare, while countless others, including journalists, were injured or assaulted by police. To make matters worse the police have proceeded to blockade the public from attending court appearances of the arrested protesters.

While there is a general consensus among the opposition and independent commentators that the country is already in a constitutional crisis others feel nothing warrants these fears.

Crisis in Zimbabwe Coalition programmes manager, Thulani Mswelanto believes that the country is already in a constitutional crisis and with a possible increase in social unrest President Mugabe would be faced with two scenarios.

Firstly, he could use  structures in ZANU-PF to work closely with law enforcement agents in crushing the protests or secondly, to declare a state of emergency.

“The President has already tried the first scenario, that is, to use ZANU-PF structures to work with law enforcement agents, hence the existence of the Joint Operations Command. The declaration of a state of emergency is provided for at law. However what is important is the context within which the state of emergency is declared,” said Mswelanto.

In essence the State of Emergency would entail suspension of the fundamental human rights and freedoms guaranteed by the Constitution.

Despite suggestion by State-run newspaper columnists that government might evoke a state of emergency, lawyers, Terrence Hussein and Paul Mangwana argued that the country had not yet reached that stage.

“I do not think it has come to a point where a state of emergency is necessary. Declaration of the state of emergency is the prerogative of the President, who assesses the situation to see if it is necessary. But in my opinion, it has not come to that. The police seem to be in full control. Just look at today (yesterday’s) stay away; it looks like the Zimbabwean people have been put off by anarchists who have been looting shops and burning things, that is why it has flopped,” said Hussein.

Mangwana concurred: “A state of emergency is not easily declared. It can only happen when the country has been invaded by another country or if there is serious undermining of the state security. From my own reading of the situation, there are a few individuals that are causing problems and these can be easily dealt with by the police.”

Rick Mukonza, a Zimbabwean political analyst teaching public administration at a South African university, thought the same saying: “Yes there is a crisis in Zimbabwe, but a state of emergency seems to be far-fetched for me… In my opinion if we did not have a state of emergency under the 2008 conditions, then we may not have it now.”

However, spokesperson for the Morgan Tsvangirai led Movement for Democratic Change (MDC-T), Obert Gutu said that because it was clear that State organs were disregarding the supreme law of the land with the police specifically defying High Court orders, Zimbabwe was on the brink of a major constitutional crisis.

“When the Zimbabwe Republic Police and all security organs of the State flagrantly disobey a court order granted by the High Court, then all peace-loving and law-abiding Zimbabweans should start to get very worried,” said Gutu.

The MDC-T secretary-general, Douglas Mwonzora, said over the past few weeks Zimbabweans have been subjected to de-humanising beatings by the police and security agents.

“The police have embarked on a programme of indiscriminately tear-gassing ordinary Zimbabweans going about their business,” said Mwonzora.

Several government ministers have since warned that government would deal decisively with any future demonstrations, accusing the United States, Canadian and the French governments of fuelling the latest machinations to topple President Mugabe, charges the foreign countries have vehemently denied.