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;

  1. 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;

  1. 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.

 

 

COMMENTS

WORDPRESS: 5
  • comment-avatar

    So Mugabe can respond to the allegations can he? This then provides him with the platform he needs to spill the beans on the whole rotten core of ZANU. Mnangagwa should be a very worried man and so should Chiwenga. Mugabe has nothing to lose, aged 93 and in frail health. He has lived his life and the end is approaching. Mnangagwa and Chiwenga, however have a lot to lose. And I assume they have no idea how Mugabe will respond. He could very well be a loose cannon, given his vindictive nature. For these reasons it would surprise me if they impeached.

    • comment-avatar
      Kevin 5 years ago

      Mugabe is an corner he cannot escape and he is making it worse for himself and moreso his family. Impeachment opens the door to prosecution after the fact. Whatever beans may be spilled wont constitute a defence against impeachment. He must be given 24 hrs to respond to charges. But that wont be material. His response can be made private by invoking national security reasons.
      For this reason i think an immunity deal would be best for him and the country.
      Again He has never thought of the country first in my opinion. Only met the guy once.

      • comment-avatar

        The MDC are present at the impeachment and will be present when Mugabe defends himself. Do you think they are going to keep quiet if the beans are spilt? They will be yelling from the rooftops that Mugabe, for example, has just admitted that Mnangagwa and Chiwenga stole the election from 72 percent Morgan! And if he is ‘prosecuted after the fact’ who do you think he will name as the guys on the ground and his advisors. Chiwenga and Mnangagwa! Gukuruhundi and the stolen election and the diamonds just to begin with. Hell it’s a smorgasbord.

  • comment-avatar
    Fallenz 5 years ago

    @jono, I think you have something there. If Mugabe is removed, all kinds of withheld information could become public knowledge. On the other hand, information about Mugabe’s dealings never stopped his supporters (ZANU-PF) from rigging the elections to return him to office… so, information about Mnangagwa and Chiwenga wouldn’t deter them in 2018. I think we’ll see folks frog-marched to the polls with only “observers” friendly to ZANU-PF, and the tally taken in secret. Voter registration is already being contested.

    David Coltart quotes a lot of articles from the constitution, especially regarding the military’s actions being contrary to law, but when did violations of the constitution ever phase Mugabe and his minion..? Their ability to selectively use various portions of the constitution, or amend it to fit their own agenda, or face a judiciary not guided by “the rule of law” is very much a part of Zimbabwe’s history… so, why should anyone think ZANU-PF will suddenly change to become a legitimate government elected in a free, fair, democratic election? It ain’t happenin’..!

    • comment-avatar
      Doris 5 years ago

      True Fallenz, when in the past 37 years did this bunch of morons ever respect the constitution? They tweeted it so much to suit their needs that it is meaningless now.