Coup and Constitution in Zimbabwe Part 1: The Military Action is Profoundly Unconstitutional

Jason Brickhill - 18th November 2017

On 14 November 2017, the Zimbabwe Defence Force (ZDF) took control of key parts of Zimbabwe’s capital Harare. Military personnel placed tanks and military vehicles on arterial roads, seized the public broadcaster and state daily newspaper, and occupied the Presidential residence, State House. A number of Cabinet Ministers and other officials were also detained. The President was placed under apparent house arrest. Although curfews have not been imposed, the public have been instructed to limit their movement. These events followed the sacking of first Vice President Mnangagwa in the preceding week.

The actions of the ZDF have received popular support but are unconstitutional. Even those opposed to the rule of President Mugabe ought to insist that constitutional means be used. As the first of a two-part blog series, I consider the legal status of the military action under the Zimbabwean Constitution. In the subsequent piece, I will outline how the Constitution deals with states of emergency and explore routes back to constitutional rule.

The ZDF have strongly resisted the characterisation of their acts as a ‘coup’ or ‘military take-over.’ They have expressly invoked the Zimbabwean Constitution to legitimate their action. In his press conference the day before the military action, armed forces commander General Chiwenga began his statement by quoting from the preamble of the Constitution. He concluded by calling for an end to the current uncertainty to “allow Zimbabweans to enjoy their freedoms and rights as enshrined in the national Constitution.”

After taking control of the public broadcaster, Major General Moyo read a further statement on national television, saying the ZDF were “only targeting criminals around [President Mugabe] who are committing crimes that are causing social and economic suffering … in order to bring them to justice.” The statement went on to reassure civil servants, the judiciary and members of parliament that the military action was intended to enable them to fulfil their constitutional roles and that “people should enjoy their rights and freedoms”. The ZDF has been at pains to deny that their action constitutes a coup or military take-over – rather to frame it as an attempt to restore constitutional order. This is probably driven by concerns about internal and external legitimacy. The South African Development Community and the African Union have clear rules against unconstitutional changes of government. Whatever their reasons, the armed forces do recognise the need at least to be seen to respect the Constitution.

The Zimbabwean Constitution provides for periods of public emergency (s 87). It requires that a ‘written law,’ subsequently published in the Gazette, must provide for measures to deal with a public emergency. However, the Constitution does not state who has this power. The Second Schedule to the Constitution defines an ‘emergency law’ as simply “a written law that provides for action to be taken to deal with any situation arising during a period of public emergency.” In the absence of any other delegating provision, Parliament is the repository of law-making power. Its legislative authority specifically includes the power to make laws for peace, order and good governance (s 117(2)(b)). It is accordingly for Parliament, and not the President or any interim authority to purport to make an emergency law – and certainly not the armed forces. In the absence of such a law, the military action is unconstitutional.

The military have occupied public spaces and state property, detained the President and other high-ranking government officials and taken control of the public broadcaster. The military action has violated at least the rights to personal liberty (s 49), the rights of arrested and detained persons (s 50), personal security (s 52), assembly (s 58), movement (s 66), protest (s 59) and expression, especially media freedom (s 61). The action has curtailed political rights (s 67), by impeding parliament and threatening future elections. It also threatens to worsen socio-economic conditions in the country and therefore to violate the rights to education, healthcare, food and water (ss 75-77) – although the armed forces claim their objective is the opposite.

These constitutional violations should not be dismissed as a necessary evil to remove a corrupt regime, as they profoundly contravene the rule of law – a founding value of the Constitution under s 3(1)(b). Some of these infringements could be legalised by an emergency law under s 87 – for a limited time and only as far as strictly necessary. Currently, however, they are serious violations of the Constitution for which the military do not consider themselves accountable. Unless the rights of the worst and weakest are protected under the Constitution, there is no assurance that anyone else’s rights will be.

Even more fundamentally, these actions are a rupture in the rule of law. The commitment to the rule of law has already been weak, arguably creating the conditions for the military to act. Far from strengthening it, these acts have further weakened it. Despite the armed forces’ assurances to the legislature and judiciary, their constitutional authority has been subjugated to military authority.

A powerful statement by 115 civil society organisations emphasised that the current situation is a grave breach of the Constitution. The statement called for the “immediate return of Constitutional order”. In the second blog in this series, I ask what paths the Constitution of Zimbabwe offers back to constitutional democracy from this rupture.

Author profile

DPhil Candidate, Faculty of Law, University of Oxford; Honorary Research Associate, University of Cape Town; member of the Johannesburg Bar.

Citations

Jason Brickhill, “Coup and Constitution in Zimbabwe Part 1: The Military Action is Profoundly Unconstitutional” (OxHRH Blog, 18 November 2017) <http://ohrh.law.ox.ac.uk/coup-and-constitution-in-zimbabwe-part-1-the-military-action-is-profoundly-unconstitutional/> [Date of Access]

Comments

  1. Paul Vuntarde says:

    Mr Brickhill, you are right in views on the matter. The constitution in. Zimbabwe is hardly even understood by the population as it was formulated in essence without the populace. My cousin and two of his friends were shot by the police at a road block so the army has also not protected the civilians.

  2. David says:

    This analysis is hollow to the extent that it focuses on the law in the books and not the law in action. The constitution has, since 2013, been ineffectual in transforming people’s lives and the ultimate indictment of that constitution is the willingness by people to support moves to remove Mugabe which may not, strictly, be in line with the same constitution they overwhelmingly endorsed in a referendum. It has failed, and people are treating it as a failure – but the writer of this article predicates his evaluation on that failed text whilst displaying ignorance of the real frustrations that people have with Mugabe, the current order and the extent to which law is instrumentalised to perpetuate oppression. Presenting law as a means to downplay a popular sentiment which has been given expression on the back of the army’s moves is so divorced from the interaction that people have with the law as to have little value to the denouement of the situation. Mugabe has always said activists should wait for elections and follow laws which are modeled to disadvantage them and the willingness to adhere to a framework which appears democratic but is essentially an electoral authoritarianism is part of what has perpetuated the Zimbabwean problem. There is a point to the rule of law and constitutionalism – they are not meant to oppress or perpetuate oppression and when the constitution is not serving the will of the people it is insufficient to point to it for solutions. It is a time for something new and not more of the old

    1. Dorcas says:

      Indeed what an apt description of how the law has been abused and distorted to serve the will of the corrupt.

  3. Bryant Elliot says:

    There already is an Emergency Powers Act [Chapter 11:04] giving the President the power to declare a state of emergency in certain situations.

  4. Hilary E.B. Makoni says:

    I totally agree with David’s comments above. What needs to be understood by everyone and the international community is that in situations such as ours in Zimbabwe; the constitution has never been observed except when it suited the regime that has been in power for so long. I personally doubt that Robert Mugabe was legally or constitutionally elected considering the fear that this monster of a man instilled in most people, particularly those that supposedly supported him in ZANU-PF. Who, in all fairness, really believes that Mugabe stayed in power because the ‘people’ wanted him?? While we do not wish to condone military interventions in political matters, the Zimbabwean situation was different and unique and called for ‘devine’ intervention, this time in the form of the army which is the only weapon that dictators like him understands and fears.

    This man and his crazy and unstable wife were behaving as if only they were entitled to run this country until kingdom come. Life was just unbearable for most right-thinking Zimbabweans. The army acted as a catalyst that gave the people the voice and courage they had long lost!!!

    All dictators must watch out. Good riddance to Mugabe, Grace and his thieving criminal elements who thought they were ordained to ride rough-shod on the people of Zimbabwe.

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