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General PV Sibanda is entitled to make political choices freely

31 Oct 2023 at 16:32hrs | Views
APPOINTMENT OF THE COMMANDER DEFENCE FORCES [CDF] GENERAL PV SIBANDA AS AN EX OFFICIO MEMBER OF THE ZANUPF POLITBURO: A CRITICAL REVIEW

The bottom part of this announcement of appointments to the ZanuPF politburo made on Saturday at the party's 2023 people's conference in Gweru by Emmerson Mnangagwa has gotten political tongues wagging and has triggered heated national debate:

"Comrade Delegates;
The amended 2023 Party Constitution gives impetus, urgency and renewed focus to the socio-economic and political realities of our country towards lifting many out of poverty and into prosperity. During the course of the year, we lost one of our Party stalwarts, Cde Joshua Teke Malinga who was the Secretary for People with Disabilities.

To fill the vacancy, I am appointing, Cde Rose Mpofu of Matabeleland South Province as a Politburo Member and the new Secretary for People with Disabilities.

Additionally, "Cde Gwenzi", General, Phillip Valerio Sibanda, as an Ex Officio Member of the Politburo".

Unsurprisingly, and indeed understandably, the announcement has raised eyebrows and precipitated predictable and even emotive conclusions – based on section 208 of the Constitution of Zimbabwe – that the appointment is unconstitutional.

Yet there is in fact nothing from a literal reading or interpretation of section 208 of the Constitution which invites or leads to a conclusion that General Sibanda's appointment to the ZanuPF politburo is unconstitutional by definition.

In any event, I do not share the conclusion that the appointment is unconstitutional. But before proffering my reasons for this position, two preliminary observations are in order.

Firstly, it is important to note that in a constitutional democracy only competent courts of law have the binding say on what is constitutional and what is not, and in Zimbabwe that authority or power or responsibility ultimately lies with the Constitutional Court as the country's apex court.

It's not healthy in a mass society under the rule of law for pronouncements on what is or is not constitutional to be a free for all jungle affair.

This is important to point out and to underscore because some sections of society; especially but not only opposition politicians, their supporters and their aligned or associated media in the Zimbabwean body politic have become notorious for branding anything or any view or any position they do not politically agree with or like as illegal or unconstitutional by definition with no argument, let alone evidence.

Surely, an issue cannot be unconstitutional or illegal simply because the loudest political mouthpieces declare it to be so.

The scourge of branding contrary or unpalatable views or positions or anything that the opposition does not agree with or like as illegal or unconstitutional has gone too far in Zimbabwe to the point of being bizarre.

Secondly, and going by the loudest mouthpieces, the opposition spectrum in Zimbabwe today has come to define itself under a propaganda matrix that encompasses five unacceptable extremes, namely that:

· CCC Chamisa is the only authentic opposition in Zimbabwe;
· Anyone who disagrees with or does not like the views or positions of CCC Chamisa as the purported "only authentic opposition in Zimbabwe" is by definition ZanuPF;
· ZanuPF is by history and definition irredeemably evil and must on account of that allegation and presumption go by definition;
· Anything that goes wrong in CCC Chamisa or is not working well therein is necessarily and only caused by ZanuPF; and,
· ZanuPF seeks a one party state in Zimbabwe, particularly but not only in the context of the recent recalls of CCC Chamisa MPs and Councillors who have ceased to be members of the original CCC formally formed and unveiled in January 2022.

There's a lot to be said and it will be said in some detail and with the requisite nuances on other occasions about each of these five extremes and their impact on public discourse and state politics in Zimbabwe today, suffice to say the branding of anything or any view or any position that does not agree with or fit in the CCC Chamisa propaganda matrix as illegal or unconstitutional is manifestly predictable and useless.

Otherwise, as already intimated above, while the appointment of General Sibanda as an EX Officio member of the Zanu-PF politburo may have political and administrative issues to debate or iron out, it nevertheless cannot be said to be unconstitutional or unlawful.

Here is why.

Firstly, it is important to have regard of the all-important section 67 of the Constitution which provides as follows:

67 Political rights
(1) Every Zimbabwean citizen has the right—
(a) to free, fair and regular elections for any elective public office established in terms of this Constitution or any other law; and
(b) to make political choices freely.
(2) Subject to this Constitution, every Zimbabwean citizen has the right—
(a) to form, to join and to participate in the activities of a political party or organisation of their choice;
(b) to campaign freely and peacefully for a political party or cause;
(c) to participate in peaceful political activity; and
(d) to participate, individually or collectively, in gatherings or groups or in any other manner, in peaceful activities to influence, challenge or support the policies of the Government or any political or whatever cause.
(3) Subject to this Constitution, every Zimbabwean citizen who is of or over eighteen years of age has the right—
(a) to vote in all elections and referendums to which this Constitution or any other law applies, and to do so in secret; and
(b) to stand for election for public office and, if elected, to hold such office.
(4) For the purpose of promoting multi-party democracy, an Act of Parliament must provide for the funding of political parties.

Political rights are the mother of all rights. No other right is meaningful without political rights, not even the right to life because life without political rights is not worth living. In other words, no human being – regardless of their work station in society or office – can live or function without having and enjoying his or her political rights.

This is why under section 67(1)(b), every Zimbabwean citizen has the right "to make political choices freely". This is an inalienable fundamental human right which is not "subject to the Constitution", save for the permissible limitations of rights and freedoms under section 86(2).

General Sibanda is therefore entitled to make political choices freely under section 67(1)(b), notwithstanding his position as CDF.

Against this backdrop, as CDF, General Sibanda's appointment as an EX Officio member of the Zanu-PF is governed by section 208 of the Constitution, which has been specifically cited by those who are claiming that the appointment is unconstitutional.

The section provides these terms:

208 Conduct of members of security services
(1) Members of the security services must act in accordance with this Constitution and the law.
(2) Neither the security services nor any of their members may, in the exercise of their functions—
(a) act in a partisan manner;
(b) further the interests of any political party or cause;
(c) prejudice the lawful interests of any political party or cause; or
(d) violate the fundamental rights or freedoms of any person.
(3) Members of the security services must not be active members or office-bearers of any political party or organisation.
(4) Serving members of the security services must not be employed or engaged in civilian institutions except in periods of public emergency.

It is expressly clear from section 208 of the Constitution that – whether he is an Ex Officio member of the ZanuPF politburo or not – as Commander of the Zimbabwe Defence Forces, General Sibanda may not:

· act in a partisan manner;
· further the interests of any political party or cause;
· prejudice the lawful interests of any political party or cause; or
· violate the fundamental rights or freedoms of any person; or
· be an active member or office-bearer of any political party or organisation.

But, and this is key to appreciate, understand and to underline: there is nothing in section 208 of the Constitution which provides that "members of the security services may not be members of any political party or organisation".

All that the section provides is that "members of the security services must not be active members or office-bearers of any political party or organisation".

Membership of or belonging to a political party or organisation is not prohibited by section 208 of the Constitution.

What is prohibited is being an active member of a political party or being an office bearer – such as being a political commissar or speaking for a political party, addressing public meetings for the party and so forth.

Being an Ex Officio member of the ZanuPF politburo is not and cannot be tantamount or be equivalent to being "an active member" or being an "office bearer" of ZanuPF.

As such, the appointment is arguably not unconstitutional, under section 208 of the Constitution of Zimbabwe.

I say, "arguably", because I associate myself with the position that only the competent courts of law in the homeland have the authority, power and responsibility to say what is or is not constitutional, with the Constitutional Court of the Republic of Zimbabwe having the final say!

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