Drawing parallels between the ZANU PF and ANC recalls, the issue of Constitutional order

Whether this is by design or it is the swinging pendulum of fortune swinging in reverse it stands to be seen. The ANC has had two recalls in successive Presidencies. This is the biggest problem Africa and humanity has, if one does it, why can't I do it too? It does not matter how different the circumstances are but one has to force a result and make an analogue where it does not fit.

Let us consider the two scenarios in question. South Africa does not have a Constituency based electoral system and therefore people do not vote for a particular MP or person per se but for the party even if there are faces that can be put on the ballot box. The idea is that the party deploys its preferred candidates and except I think for councilors that are directly elected by the people if I am correct. What this means is that the term deployment therefore is fitting under these circumstances because then the party sits and decides who of its members will then go to parliament. This is clear deployment and if ANC has a majority in parliament it again instructs its members of parliament to vote for a particular candidate to be the President and again the people do not directly elect a President or vote for a person but merely vote for the party and the party then deploys the people it chooses. This is why South Africa's devil has been MPs voting on party lines or from their conscience during vote of no confidence motions leading to secret ballots being sought.

This term was not used erroneously by ZANU PF in November 2017, it was a case of a dull child who copies until they copy the name of the person they are copying from. It was a case of desperation to try and pretend as if there is a wave of a particular behavior that is taking place in Africa and it's a revolution and must be accepted as such. In ANC the recalls were both after congresses and unfortunately the incumbent President will have directly fought the incoming President which creates tension and leads to the old guard being kicked out because this person's time is up in a short while anywhere but has shown traits of disloyalty by trying to depart from the expected party behavior and therefore is seen not to help the new person with his mission which has just begun but could infact sabotage it if kept at the helm of the country.

In the ZANU scenario, it was first a case of a disgruntled person or persons who lost a political battle that was taking place within the party in terms of the succession politics in ZANU PF. The benefit that the Mnangagwa group had was that it had close ties with the army who were also not happy with the succession politics because they had ambitions to come to the presidium as active members of ZANU that had always been the king makers in the country. They had kept ZANU on the pedestal this far and now Mr Mugabe was seeming to tilt favours to other people that had not kept the culture of ZANU of being kept in charge by the army.
ZANU could not recall as a point of departure because it does not deploy. Its members campaign through primaries and therefore ZANU cannot claim to use the South African system because Members of Parliament and the President are directly elected by the people and not the Party. The party in a nutshell is a vehicle meant to facilitate a home with broad policies and a collective of culture like the culture of kleptocracy in ZANU. In Zimbabwe the electoral system works with a direct election of a member which is why after Professor Jonathan Moyo was kicked out from ZANU around 2004 he went on to win as an independent because the party has no control of who really comes in but the acumen of the individual plays a big part.
 
ZANU could not recall one whom it had no power to deploy because it cannot deploy. Naturally even if ZANU fired its President this would necessarily create a problem for them because they did not elect the President, but the people did and as such could only fire him legally from the party but not the country's Presidency. They can only control the situation effectively if they have a clear majority to then impeach but again such impeachment must be based on gross negligence or other provisions of the Constitution not the internal fights within the party. You will note that this is the dilemma that ANC almost faced with President Zuma especially after pronouncing that they were recalling him but claiming he had not done anything wrong. If indeed Mr Zuma did not have the skeletons that he had in his closet, then they could not Constitutionally and successfully impeach him because they would not have any grounds. The late night marathon meetings were necessitated by the dilemma of the pronunciations of the ANC on just an ordinary recall but with no wrong doing because anything further would not be supported by the Constitution and Mr Zuma also knowing his house was not in order was worried that the 31 March 2016 Constitutional Court judgment if brought up could be a reason to kick him out and thereby causing him to lose his pension and he would not gamble because he was unsure how that would go if taken to court as to whether the court would indicate that indeed the ruling was still standing to be used for impeachment purposes. The ANC did not want this route because this would also tarnish their image and drag them down with Mr Zuma after defending him ferociously during his tenure while these matters were before the courts and would have wanted a more softer approach which did not leave them with mud on the face.

In any case the situation is clearly different with the Mr Mugabe one because ZANU could not recall but the similarities are only that in the impeachment process they could also succeed seeing that Mr Mugabe had never been one to observe the Constitution and all they needed to do was pick one or two recent actions and he would be out. This is also one thing that ultimately helped ZANU PF. The similarities would be in that the two men in question were not creatures drawn to observing the Constitution.

However, the ZANU situation is further dissimilar to the ANC because of the preceding evets. The ANC had always had a congress and a new incoming national Presidential candidate and President of the Party now elected by the people of the ANC but in Zimbabwe the ZANU congress was still on its way and further to that ZANU does not deploy but people elect directly. The major concern is that before the purported impeachment which indeed could have succeeded considering Mr Mugabe's unconstitutional disposition, the army had seized state power against the provisions of the Constitution. The Constitution provides for an apolitical army that does not involve itself in civilian authority or the politics of the country but only being deployed by the civilian authority through the Commander-in-Chief no matter how bad he is. They can only refuse to execute an expressly unlawful command from the CIC but not to be their own masters and revolt because they do not like his style of leadership in the political arena.

The army could have absolved themselves of this mess by quickly going back to the barracks before the purported impeachment, removing all the soldiers from the streets but this could not happen because the police and CIO were not seen as completely neutralized because this was not a people's revolution, but one led by the army while in disagreement with other sectors of the security forces. The army needed to first see transfer of power and heads of these other security clusters removed and those loyal to the Mnangagwa faction installed.  Further to that they also wanted themselves in powerful positions and did not really concern themselves about the generality of Zimbabwe whom they knew could not give them much problems because of their fear of the army after its successful campaigns for 38years against the people.

The elephant in the room here was that the army had always kept Mr Mugabe in power and they did not in their minds see anything amiss in their behavior because they have always flouted the Constitution. They have sat before with Mr Mugabe and agreed on violating the Constitution and they did not see why he would complain. It was a natural process like how Mr Tsvangirai had been deprived in 2008 by the army, this was karma and to them Mr Mugabe must have understood that. However, after President Zuma's statement as SADC head on happenings in Zimbabwe then they realized that they could run into problems and therefore tried to sanitise the situation by trying to get Mr Mugabe to resign, then they recalled him, a constitutional invalid and useless act in Zimbabwe which did not work, then they tried impeachment. It is clear the recall came from the SADC meeting where the South African Ministers clearly suggested it but unbeknown to them that the two systems were completely different.

The Big Problem that remains - Zim Constitutional provisions unpacked.
The army through its commander then confirmed what the Zimbabwean people have always claimed that it interferes with the politics of the country which the Constitution expressly outlaws in section 208. This is the part that is being downplayed by the beneficiaries of the coup. Section 207 states that the security service are subject to the authority of the Constitution, the President and the Cabinet and are subject to parliamentary oversight.

One Thabani Mpofu a lawyer misleads and misdirects himself because of the term subject to the Constitution where in section 110(2)(g), states that the President subject to this Constitution deploys the Defense Forces. Section 213 further states only the President as the Commander-in-Chief, can deploy the army subject to the Constitution. He understands it to mean there is another provision that allows the army to activate self-deployment, or another centre of power that can deploy the army but unfortunately that does not exist by all various methods of Constitutional interpretation, textual or purposive, wide or narrow, the text of the Constitution is very clear here.  He further with many others abuse section 212 of the Constitution which states that the functions of the defense forces is to protect Zimbabwe, its people, its national security, and interests and its territorial integrity and to uphold the Constitution.
Let us demystify this statement.

1.    The army must uphold the Constitution, which constitution clearly outlines what the army can or cannot do in section 208, and 207.

a.    Sec 207 states it is subject to the Constitution and the President and the Cabinet which clearly shows that it only acts as per the President while his commands remain within the Constitutional provisions which have also outlined its duties and don'ts.

b.    Sec 208 states they must act in accordance with the Constitution and the law, a clear emphasis born of the previous perceived actions of the army where it has always meddled with civilian affairs outside of the law.

c.    Sec 208(2)(a) states that the security services or any of their members, who could consider themselves not part of the security services but are members by virtue of receiving promotion even after retirement (my own unqualified independent interpretation of that statement), may not act in a partisan manner, which means they may not act in the interests of a party for or against any party. General Chiwenga in his statement on 13 Nov 2017 clearly stated they had to resolve the unrest within the ruling party in direct violation of this provision.

d.    Sec 208(2)(b)Again the Constitution being aware of the previous army actions further states no action in the interests or to further the cause of any party interests, while here again the army declared an operation dub named, ‘restore legacy' which legacy is a ZANU PF legacy as per the statement of General Chiwenga which included how the liberation war was fought and how ZANU PF resolved its internal problems peacefully within its meetings without going to the media, that again was violated in this process.
e.    Sec 208(2)(c) that the army may not prejudice the lawful interests of any political party or cause; this brings two views –

i.    the dominant being that ZANU PF was disintegrating and that would have changed the politics of the country removing the dominance of ZANU since 1980 which would have benefitted all other opposition parties which must be aggrieved by the quelling of these fights using state machinery while when the other parties fight e.g the MDC they are left to disintegrate and break into millions of pieces as alluded to by Mr Mnangagwa that MDC was ever breaking apart.

ii.    The second being that interests of the G40 faction of ZANU PF were being prejudiced as they were asserting themselves as a party in ZANU PF that had stood on its own as G40 and they had won over the Lacoste and therefore their interests were prejudiced by the army and on this basis could approach the courts. If they intended breaking away clearly from the party with a new mandate of generational renewal that was within their Constitutional protected political rights.

f.    Sec 208(3) states that security forces may not be active members or office bearers of any political party or organisation, yet Gen Chiwenga was seen at the ZANU PF Congress in Dec 2017 which begs for an explanation as this section might have been violated but further to this it is illogical that an ordinary onlooker or inactive member of ZANU PF could immediately within five days of resignation from the army be appointed 2nd Secretary of ZANU PF without being a loyal member in good standing against the demands of the Constitution. The ZANU Constitution states that the 2nd Secretary or Vice President must be appointed for their skill, probity, integrity, and commitment to the party ideology, values, principles and policies and surely this cannot be seen from a non-active member and how could an active army general display all these to the party which he is barred from being an active member of by the Constitution.

g.    Sec 208(4) serving members of the security services must not be employed or engaged in civilian institutions unless it's a public emergency, public emergencies are pronounced by the President and the army policing the Zimbabwean roads were serving which public emergency and who had pronounced it, except the illegal ‘operation restore legacy.'

2.    Sec 212 is clearly understood to deal with physical threats from insurgencies or outside the country threats or acts of terrorism but again very important can only be deployed by the Commander-in-Chief as shown in sec 213. The subject to this Constitution clearly is about the President only acting within the confines of the constitution not anything here meant to assume that the army can deploy itself to perform any duty against the President if they feel he is not doing his duty. The army cannot be deployed by the President without following the procedures including informing parliament within prescribed times for approval or disapproval which still speaks to subject to this Constitution.

3.    The army has no oversight role over the executive whatever the executive does which is unlawful but rather parliament does. Parliament therefore in terms of section 119(2) has the oversight role to ensure everyone acts constitutionally and sec 119(3) states that all institutions and agencies of state at every level are accountable to Parliament in view of its oversight role stated in sec 119(2). This means the executive is subject to the oversight role of parliament and not the army. Parliament is seen here as the direct representation of the people by direct election in comparison to the unelected members of the Cabinet and the Judiciary. The President can easily go rogue and prejudice the whole country, but parliament is seen as being more balanced with many representatives and therefore some could disagree to be violated and compromised.

4.    Sec 212 cannot be understood to make the army the checkmate of the President but rather the separation of powers principle in sec 3(2)(e) is meant to help curb abuse by one organ of state and section 97 is the only tool that can be used to deal with a rogue President not the army. Had Parliament initiated the Sec 97 operation without the deployment of the army they would have done well but for the deployment of the army the whole process becomes tainted with an illegal and unconstitutional process that Zimbabwe cannot allow to happen. The army in the streets instilled fear in many people to ensure that they toe the line they had drawn including parliament seeing that other parliamentarians who were on the wrong side of the divide were already on the run being hotly pursued by the army. The attempted impeachment stands forever invalidated and barred by the first environment which created an army-controlled state through the take-over of the national broadcaster, government buildings and other strategic state institutions including the firing of guns on the night of the 14th to the 15th of November 2017 which showed that the army was ready to do the its if anyone stood on its way.
Why it is important to have the Unconstitutionality declared?
Zimbabwe since independence has always had the army being used to intimidate the people of Zimbabwe but there has been no clear-cut case to use in court as they would be acting as if deployed or in agreement with the President. This opportunity presents a multi-faceted solution in that the courts by pronouncing the undoubtedly constitutional invalidity it clarifies that:

1.    The army cannot resolve a political crisis, the army is precluded in dealing with such affairs.

2.    The army has duties clearly defined in the Constitution and they may not be deployed even to do that which is not provided for in the Constitution even if it is by the President.

3.    This will help correct the practice that had now been embedded in the army where they felt they were part of the executive to run the country and interfere with elections and decide who becomes President as they continue to say to-date that no one without liberation credentials will be President of Zimbabwe.

4.    That the army may not be used as the militia of an individual or political party or used to intimidate other political parties or prevent them from carrying on their legal political business.

5.    That the army may not be active members or hold positions in political parties.

6.    This novel case and opportunity presents an opportunity which if not fully utilized now then the army will furthermore act with much impunity in such cases as this particular case will embolden them to disregard civilian authority and the Constitution and they will understand the Constitution to mean they can veto the President which is not the case and based on this practice they would not be wrong to think so.

7.    This case also provides an opportunity to rethink the appointment strategy of the officials of the Judiciary which was amended again in 2017 reverting back to the old Constitutional dispensation which allows the President to appoint without veto his desired heads of Judiciary which was the case when Judge President, Retired Brigadier General George Chiweshe was appointed. He went on create chaos at ZEC in 2008 and has come up with two damning orders that make Zimbabwe look like a circus (24 November 2017 High Court orders). The declaration of the army actions unconstitutional will automatically bring into review the decisions of the High Court Judge President which could lead to his impeachment or firing for gross negligence and violation of the Constitution and failure to perform his duties. This would then lead to establishing his interest in making such orders which will be clear he was acting to the interests of the army that has always been running the country hence his deployment there.

8.    The Court in giving its judgment will be forced to deal with all these issues in detail and thereby set a clear process or in fact clearly show that the 2nd amendment of the Constitution of Zimbabwe violates the principle of the separation of powers which is enshrined in our Constitution.

9.    The failure to deal conclusively with this issue now means anyone in Zimbabwe who is the President will use the army to remain in office and the army will remain King maker against the provisions of the Constitution and will meddle with politics to destroy proper multi-party democracy whenever they feel ZANU PF is under threat.

It is therefore imperative that as many believe that the army did well by removing President Mugabe, that they should understand the bigger underlying problem which is being furthered. The removal of Mr Mugabe is celebrated by almost all Zimbabweans, it was long overdue but the involvement of the army, the consequences of the army involvement including them taking political posts which has been a trend since 1980 cannot be left unchallenged and is very problematic and unconstitutional.

It must be understood that by leaving the status quo it means Zimbabwe will never know a Constitutional democracy and the pronunciation by outsiders supporting the Mnangagwa administration and seeing him as a hero, this is a betrayal to the people of Zimbabwe in the same light that we felt betrayed when Mr Mugabe refused to step down when he lost in 2008 leading to the GNU. This is not about popularity or the many Zimbabweans who support Mr Mnangagwa, it is about the supremacy of the Constitution of Zimbabwe. The role of the Constitution is to ensure that human rights are not trampled upon because of the majoritarian demon and in this case it's hardly majoritarian but a handful making much noise through provided channels and means.

The outsiders who enjoy constitutional democracies in their countries especially South Africans cannot be seen to be wanting less for Zimbabweans. One wonders that what is their benefit in the furtherance of the suffering of ordinary Zimbabweans than for them to stand on the right side of history by simply stating the obvious, that there was a coup in Zimbabwe.

In today's global village we expect onlookers and the global community to be fair and make just pronunciations because they are not involved in the disagreement but if they support the oppressor then the oppressed cannot see them as just but rather as part of the oppressive system. What Zimbabwe needs now is to correct the wrongs of the past than to negotiate with opportunistic thieving politicians who fancy themselves more important that the rest of the country.

Dr Vusumuzi Sibanda
Liberal Democrats National Committee Chairperson
@vsibbs/+263 71 375 8705/ vsibbs@gmail.com/ +27 81 460 6572