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