Has the military 'comported to the dictates and mores of constitutionalism'?

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;
2. 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;
3. 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.