Constitutional challenge over Mugabe’s fitness to continue as President

By Lance Guma

A prominent lawyer has filed an application asking the Constitutional Court to make a finding that there exists enough evidence to show that President Robert Mugabe now lacks the mental and physical capacity to carry on as president.

Tinomudaishe Chinyoka, a former student leader at the University of Zimbabwe, also wants Parliament’s failure to act under Section 97 to be declared as a violation of the constitution. According to Section 97 of the constitution, a president can be removed from office due to physical or mental incapacitation.

In the application filed on Friday, Chinyoka cites President Mugabe, the Minister of Justice, Legal and Parliamentary Affairs, the Speaker of the House of Assembly, President of the Senate and the Government of Zimbabwe as respondents in the matter.

Chinyoka says the health issues surrounding Mugabe are well documented and that there is growing evidence the 91-year-old no longer has the mental and physically capacity to continue as leader. Below are some of the examples he submitted in the application.

“On 7 December 2014, while delivering his keynote address at his Zanu PF congress, First Respondent (Mugabe) gave his party slogan as ‘Pasi neZanu PF’, which is the exact opposite of how he has said it since at least 1980 when he came into the public eye,” Chinyoka said.

“On or about 4 February 2015, while returning from a trip to Ethiopia, First Respondent fell awkwardly while descending from a podium at the airport. From the pictures of the event, there does not appear to have been any obstacle that caused this fall, and the awkwardness of the fall appeared to be inconsistent with this obstacle-free environment.”

“The suggestion from this episode is that First Respondent may no longer be physically fit, thus putting into question his fitness for the job of President of the republic.”

“On 21 November 2015, Dr Grace Mugabe, First Respondent’s wife, told a meeting of Zanu PF supporters that she had plans to buy him a special wheelchair so that he can remain in power as long as he can speak.

“Being the only person with intimate knowledge of First Respondent’s physical health, it is my submission that for his wife to talk about buying him a wheelchair, there has to be some medical reason that suggests that his physical ability to mobilise on his own is seriously impaired,” Chinyoka submitted.

“On or about 14 September 2015, at the opening of Parliament, First Respondent read word for word the exact same speech that he had delivered barely 3 weeks earlier when he gave his ‘state of the nation’ address on 25 August 2015. Any person with their mental alertness intact would have recognised a speech that they have read only three weeks previously.”

“Media reports have confirmed that First Respondent is a frequent patient at GLENEAGLES Hospital in Singapore. On 19 May 2014, First Respondent was filmed by private media going into the hospital. Media reports since at least 2011 have linked him with this hospital, with speculation that he is undergoing cancer treatment.

“On or about 2 December 2014, First Respondent informed service personnel that he had lost the disputed Presidential election in 2008 as his opponent, Morgan Tsvangirai, had received 73% of the vote. First Respondent had to rely on the audience to suggest random figures to him, which he then regurgitated.

“Given that these individuals were not from the Zimbabwe Electoral Commission, and given that First Respondent was happy to repeat what they said, speaks to his suggestibility. It is a well-known scientific fact that suggestibility is significantly related to low intelligence, poor memory recall, neuroticism and social desirability. I believe that poor memory recall and neuroticism would engage section 97 of the Constitution and render First Respondent incompetent to be President.”

“It has now become very common that each time First Respondent attends an international conference, media reports about him from news outlets outside the control of 5th Respondent always show First Respondent asleep. This brings to question the very idea of why his attendance, at public expense, is necessary, and brings to question his physical fortitude in the circumstances.

“It is my contention that all these events ought to have been enough for 3rd and 4th Respondents to at least initiate the process of looking into whether or not section 97 of the Constitution has been engaged. I am worried, and I believe that the public would also be worried, that 3rd and 4th Respondents have not been moved by any of these events into action.

Chinyoka argues that “it is it is in the public interest for this Court to clarify when and where the powers in section 97 can be used, and to order 3rd and 4th Respondent to set out the necessary Standing Orders to give effect to this section.”

“I submit that in an open and transparent democracy, the mere fact of a president going into hospital for example, or falling in public, or being routinely asleep on the job, or being told to get off the podium by his wife and complying, or suggesting that he is bullied at home, or falling all over the place, or reading the wrong speech and droning on for an hour without realising it, should, at the very least, lead to a consideration of whether or not section 97 is engaged.”

“I submit that this matter is so important that even if the Court feels that an investigation into First Respondent’s competency is unwarranted at this stage, it would still be necessary for this Court to lay out, in the public interest, in what circumstances and how the powers that are vested in Parliament under section 97 can be used,” Chinyoka.

Constitutional law expert Lovemore Madhuku, is on record as saying it was virtually impossible for parliament at the moment to impeach the president.

“It is impossible to impeach him under our current constitution to remove the president from office. It is a very useless constitution. For you to remove the president as parliamentarians you will need to do it through what is called an impeachment.

“Just to get the matter to be debated in parliament you will need one third of the total membership of parliament to be able to introduce a motion for that debate … About 90 MPs will have to sign that to have the matter to be introduced.”

Madhuku said “if the motion is debated and parliament needs to vote to remove the president, that vote must be supported by two thirds of the total membership which includes the Senate. So, you will need 270 (MPs) plus 80 (Senators). Two thirds … two thirds of that kind of number.

“You will need over 200 something MPs in the country and all these are MPs that are drawn from Zanu-PF. Opposition numbers in parliament have gone down.”

Last month Chinyoka took President Mugabe to the Constitutional Court challenging the constitutionality of declaring December 22 a national holiday over a unity accord signed between two political parties — Zanu and PF-Zapu. In the same month Chinyoka again sued Mugabe over the partisan manner in which national heroes are selected.