Has the Mnangagwa administration had a false start in respect of the rule of law?

By Tichatonga Mangwana

The Mnangagwa administration needs to deal with a myriad of problems, ranging from revitalizing the economy, re-engaging the world, bringing up the health and education system back up again, arresting corruption and many others.

All these problems flourished right under Mugabe`s watch for 37 years. A key starting point in the struggle against the corruption scourge is to give the bulldog, ZACC, real teeth.

In general, the Mnangagwa administration must create or support key institutions that support democracy. But this is a topic that awaits another day.

But I was moved by the High Court order delivered last week, which effectively legalized the military intervention that resulted in the fall of the Mugabe regime in the last couple days. It was disappointing and a shame. Justice George Chiweshe has been a judge of the H.C. for the past ten years. He has no impressive record at all. 10 years, only 5 reportable judgements.

On 24 November, this honorable judge of the High Court issued two important orders:

1. The military intervention and subsequent takeover by the military of Mugabe`s government was constitutional
2. The firing of Mnangagwa by former President Robert Mugabe from the former`s position as Vice President was null and void.

As to the first point above, the court order reads:

It is ordered by consent that the actions of the Zimbabwe Defence forces to stop the takeover of first responded (Mugabe) `s constitutional functions by those around him are constitutionally permissible and lawful  in terms of s 212 of the constitution.

As to the second, the High Court order reads:

The dismissal of the applicant (Mnangagwa) by Robert Mugabe from the office of Vice President of Zimbabwe on 6 November 2017 is null and void and, accordingly, of no force or effect.

I agree that Robert Mugabe`s authoritarian rule thoroughly plundered Zimbabwe for nearly four decades and in the process rendered certain institutions of the state such as the judiciary not only powerless, but also a mockery and a laughing stock of the world. We must not return to these old dark days again.

When judges pick and choose areas or sections they want to justify a cause, ignoring other relevant areas, then you know the country is in trouble. The judge chose to use s212 only to justify his order of legalizing army intervention and ignored s208 of the same supreme document.

Legality means that when interpreting the law, the courts must use the law in it`s entirety, not just parts/sections of the law that suits the judge`s preferred ends. That is why the courts use legislation, precedence, common law, international law etc to determine infringement of the law, whether civil or criminal. S208 provides as follows-

• The security forces must act in accordance with the Constitution and the law
• The security forces must not

(a) act in a partisan manner

(b) further the interests of any political party

(c) members of the security forces must not be active members of any political party.

The provisions of s208 above mean that the military forces must observe the law in its entirety, not just s212. S108, in summary, prohibits the military from furthering the interests and or causes of any political party.

Furthermore, s213 of the Constitution of the Republic of Zimbabwe is very clear in respect of the deployment of the Defence Forces. It provides as follows-

• Only the President, as Commander in Chief, has the power to-
• Authorize the deployment of the Defense Forces
• Determine the operational use of the Defense Forces.

The political explanation to this judgement is that the army made a necessary move to rescue state capture by the former First Lady and the G40 goons. This was the only way out of this political crisis, the political explanation goes on, and otherwise the nation was doomed.

What is the validity of the argument that the Constitution can be set aside in order to “deal with criminals around the president”? This is an injudicious legal argument. Is there anything like a necessary evil at law? The answer is No. If these two judgements are challenged at higher levels, can they withstand the challenge? Most likely yes.

The fact that the former president said that the conduct of the army must not be construed as a coup de tat is irrelevant. The interpretation of the law is core, not what Mugabe or the military say. The Constitution (and therefore the law) operates on principles and not the feelings of the Central Committee, Mugabe or the judge.

Law students use High Court, Supreme Court and Constitutional Court decided cases in their study of law as authority. Also, some of these High Court cases set a precedent and are used in trial cases. For instance, the trial process of one accused Mr. Chombo will certainly raise important constitution questions. I hope during this trial, Prof. Madhuku, the accused`s legal representative, will raise these interesting questions and this HC decision will be quoted.

One is bound to ask whether such High Court judgements were even necessary? Has the judiciary been captured from day 1? Why did Justice Chiweshe embarrass himself in such a fashion, since the world had accepted the coup not a coup and everyone was ready to move on with the new crocodile regime? It is very clear the judgements were meant to legalise the illegal military actions. We do not know the ratio decidendi yet, as the judge has only delivered an order without the judgement.

But upon reading the wording of the court order, it becomes very clear that the so called order is more of a political expediency rather than a judgement that is arrived at after allowing for some legal reasoning and following the due process. It`s an injudicial judgement that makes our judiciary a laughing stock.

The Mnangagwa administration must, from Day 1, show they are different from the Mugabe regime by resisting any attempts to capture the judiciary and arresting the rule of law. Attempts to defeat the rule of law has the undesired effect of taking us back to old season of Mugabeism when criminal cases were decided at rallies and the criminal accused were cleared of serious criminal charges of corruption and criminal abuse of office by the former First Lady.

Conclusion

The two HC orders of last week set an incredible precedent.

As a nation, we reap what we sow. I wish the new President and the new government well. The nation is hungry for a return to economic normalcy, a sustainable budget deficit, functional health and education sectors, an end to a culture of impunity, entitlement and corruption.

But also, equally important, for these to be achieved, there is need for a complete return to the rule of law and the respect for an independent judiciary. A captured judiciary from Day 1 does not bode well for Mnangagwa`s reform agenda. Political expediency should never be an excuse for circumventing constitutional precepts. The judgement by the High Court was unnecessary and a ridiculous one and sets a wrong precedent.

As the nation gets into the election season, wananchi need an assurance that the old judiciary bend on rubberstamping pre-decided judgments by politicians is gone, and that we have entered a new era of judicial independence. With judgments like these, wananchi must be forgiven to think that Mnangagwa has had a false start, that the Mugabe circus is still with us and that the judiciary is compromised from Day 1.

As Mandela said, it’s a long walk to freedom!

Tichatonga Mangwana is an attorney and political researcher based in East Africa.