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:
- A simple majority of the total membership of Parliament must
resolve that a question whether the President be removed from office
be investigated;
- 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;
- 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.
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