August 1 army deployment ultra vires Zim Constitution

With all the attention focused on the commission of inquiry into the August 1 killings this week, our column will analyse some questions asked and claims made against what the legal position is.

Source: August 1 army deployment ultra vires Zim Constitution – NewsDay Zimbabwe November 15, 2018

just saying: Paul Kaseke

Can the army be deployed to assist in law and order?

Unfortunately, yes, the army may be lawfully called in to assist in law and order internally, and this is no different from other countries. Why the army was called in should, therefore, not be the focus.

The question should be whether the legal process around the deployment was followed. Both the Public Order and Security Act (Posa) and the Constitution permit this to happen with very little justification required.

Whether this should be left unchecked is another question which the current Parliament must deal with. However, the country’s supreme law does envisage the army being used for law and order purposes.

When can the army be deployed?

Now that we have addressed the first question, the next is when can the army be used for law and order purposes? Currently, there are two provisions that deal with the deployment, but one became redundant and obsolete in 2013.

Notwithstanding this, Posa permits deployment in terms of s37, whereas the Constitution permits deployment in terms of s213.

In terms of Posa, a deployment can take place for the purpose of “suppressing any civil commotion or disturbance in any police district”. In terms of s213(2) of the Constitution, however, the army is deployed internally:

a) in defence of Zimbabwe;
b) in support of the Police Service in the maintenance of public order; or
c) in support of the Police Service and other civilian authorities in the event of an emergency or disaster.

As can be seen, the Constitution has a wider ambit in terms of which the army can be deployed. For reasons that follow, this is the only provision that matters in considering when the deployment of the army can take place.

Please, note that s214 of the Constitution further qualifies what steps the President must take when dealing with an internal deployment.

Can the army be deployed using Posa?

Posa allows the army to be deployed by the Defence minister in consultation with the Home Affairs minister and the Police Commissioner-General.

To be clear, the sequence here is that the Police Commissioner-General approaches the Home Affairs minister, who then requests the Defence minister to deploy the army to assist the police.

Posa does not require the President to consent to or authorise anything, and a direct deployment can be done through the Defence minister.

Section 213 of the Constitution sees things differently because the only person who can authorise the deployment of the defence forces, both internally and externally is the President as Commander-in-Chief (subject to certain safeguards, of course).

There is an obvious contradiction that government has entangled itself in (unnecessarily) because s213 allows only the President to authorise deployment whereas Posa allows the Defence minister to deploy.

Because s37 of Posa is at odds with s213 of the Constitution, the question that has been asked by many is: which law government is obliged to follow? The answer is simple and clear.

In the words of the Chief Justice in Mudzuru and others, “the invalidity of existing legislation inconsistent with a constitutional provision occurs at the time the constitutional provision comes into force and not at the time a fundamental right is said to be infringed or when an order of invalidity is pronounced by a court”.

The logic here is straightforward; the moment the Constitution came into force, it displaced s37 of Posa which was, at the time, inconsistent with the Constitution. Section 37 of Posa is, therefore, unconstitutional and not to be viewed as part of our law.

According to the Constitutional Court’s reasoning in Mudzuru, it ceased to be valid or “good law” on the day the Constitution was enacted, as it is the Constitution that creates invalidity and not the courts.

The correct legal position, therefore, is that s37 of Posa may not be used to deploy the armed forces because it is constitutionally invalid.

Arguments that suggest otherwise are unfortunately at odds with the Constitution and the concept of constitutional supremacy.

The testimonies that suggest letters were exchanged between the Home Affairs and Defence minister serve no basis of legal deployment and point, instead, to a constitutional violation. The failure to provide evidence of the authorisation being approved by the President himself renders the deployment on August 1 unlawful.

The legality of the use of live ammunition

Universally, the concept of minimum and proportionate force is used in determining appropriateness of use of force. The test for proportionality is simple: the force used in responding to a threat must be equal or less than the threat posed and no greater.

In other words, one cannot use a sledge hammer to crack a nut. Live ammunition is the last degree of force permissible and the deadliest.

It is accepted-best-practice to start with water canons, which can be escalated to teargas and when there is a degree of violence to the law enforcement agents, the use of rubber bullets can be used, but even then, only sparingly.

In the instance where the lives of the officers are threatened, and only where a life and death situation ensues, can the use of live ammunition be considered.

No such threat existed from the footage and the admission by the commanding authorities. The degree of force was, therefore, disproportionate.

Even if we pretend Posa was lawfully used to deploy the army (which seems to be the argument made), the legality question does not disappear. Here’s why:
1. The command of the deployed unit

Section 37 of Posa is clear that when the army is deployed in terms of the Act, the deployed army forms part of the police unit and is not under military command.

The ultimate command, therefore, rests with the police which called for assistance. The army does not displace the police or usurp its authority, but forms part of the police, as an extension of it.

Suggestions that nobody knew who was in charge are, therefore, unsustainable and flawed even by Posa’s standards and so is the suggestion that the military issued soldiers with instructions to act in a certain way.

The tactics used and degree of force to be used would in terms of Posa, only be issued by the police command and not the military.

2. The legality of the deployment by the Vice-President

All accounts now point to a deployment being authorised by Vice-President Constantino Chiwenga, who was Defence “minister”.

That being the case, the deployment is not cured by this because the Vice-President could not have lawfully deployed the army.

In short, when the incident took place, Zimbabwe did not have a Defence minister despite the government claims to the contrary.

Chiwenga could not hold both positions, in terms of the Constitution. Whether government believed it had a Defence minister is neither here nor there, the question is an objective one — was he lawfully appointed as Defence minister?

 Chiwenga was appointed as Vice-President and took the oath of office of Vice-President. The President is constitutionally required to appoint a specific minister for the Defence Forces in terms of s215 of the Constitution.

 The ministerial oath in the Third Schedule would have been taken for every single minister, as it varies greatly in content from that of a Vice-President. The VP would have to take an additional oath for him to be a minister, although this would still not make him one because:

 Section 103 of the Constitution prohibits the Vice-President from holding any other public office, directly or indirectly. A ministerial position is a public position and, therefore, by purportedly appointing the VP as Defence minister concurrently, the appointment was a direct contradiction of s103. It was, therefore, a nullity.

Unlawful conduct or violations of the Constitution cannot be cured by government’s belief that there was a valid appointment.

As I stated earlier, the test is what the Constitution holds and not what the government believed it could do.

It’s, therefore, apparent that the Vice-President could not have been appointed constitutionally as the Defence minister and, therefore, even if s37 of Posa was valid, the deployment would have been done unlawfully by the VP deploying the army on the mistaken belief that he was the Defence minister.

The commission of inquiry should, instead, ask:

 Whether the deployment of the army was lawfully done?

 What instructions were issued to the army on the day, by who and whether these instructions could be said to have been issued lawfully at the time?

 Why disproportionate force was used (the question on whether it was disproportionate is already a foregone conclusion and nobody can, in good faith, argue otherwise)?

 Which individuals in the army should be held responsible for the shooting?

 What remedial action must be taken to remedy the unlawful deployment and what steps will be taken to hold to account those responsible for the loss of life on August 1?

Without answering these questions, the commission would be nothing more than a smokescreen … just saying!

Paul Kaseke is a legal adviser, commentator, policy analyst and former law lecturer with the Wits Law School & Pearson Institute of Higher Education (formerly Midrand Graduate Institute). He serves as senior managing partner and current group chair of AfriConsult Firm. He writes in his personal capacity