Chinyoka on Tuesday: This legitimacy nonsense is nauseating

By Tinomudaishe Chinyoka

It’s one of the ironies of life, that students almost always surpass their teachers. But we have never checked to see why this is, or if we have l have not read that paper. I just think it might be because of something l once said on these pages: those who can’t; teach.

Ironic too that it was Welshman Ncube who taught me Constitutional Law at university. He seemed good, brilliant even. Usually came to class without notes and just spoke. But this is not about Welshman Ncube.

It is rather about a seminal constitutional law case in our law books, that of Madzimbamuto vs Lardner-Burke and others. At the time of this case, Southern Rhodesia was a self-governing British colony. In 1965, the government had unilaterally declared its independence from Britain, IDS (not Iain Duncan Smith of the British Conservatives but our own muShurugwi Ian Douglas Smith).

The declaration was viewed as illegal by the British government. This meant that the legitimacy of the government was not recognised. Mr Madzimbamuto was detained under Emergency Power Regulations, which were enacted before the Unilateral Declaration of Independence by IDS. Although they expired in 1965, the regulations were extended by the ‘independent’ Southern Rhodesian IDS government, which kept Madzimbamuto et al detained.

The issues in the case concerned the legality of the Emergency Power Regulations that was prolonged by what Mr Madzimbamuto regarded as an ‘illegitimate government’ and whether he was lawfully detained.

In what is now a very famous pronouncement of constitutional law realities, the highest court in our land decided that the IDS government was the de facto government of Rhodesia by virtue of its “effective control over the state’s territory”, and could “lawfully do anything which its predecessor could lawfully have done”. Holding otherwise would create a legal vacuum.

The doctrine of effective control is what allows us to deal with coup governments the world over even when we claim to abhor them. It is what determines when a government has been removed from power, after it loses effective control. On the day that we targeted the criminals around His Other Excellency, they fled because they no longer had effective control.

The whole world did not suddenly say ‘we won’t talk to you unless Jonathan Moyo is here’ because they recognized that effective control had shifted. We had no elections afterwards, but across the world the new Minister of Foreign Affairs was feted and received because his government was in effective control, despite having been the announcer of the non-coup-coup.

I don’t know what they teach to law students who go to university via mature entry so I can forgive Chamisa but Welshman Ncube knows about the doctrine of effective control. As does Tendai Biti. And Jacob Mafume. And Job Sikhala. And Douglas Mwonzora (who may or may not have been named after IDS, the World War II hero). As does Fadzai Mahere. As does David Coltart, and the other Coltart. Many people sitting around Chamisa know that the legitimacy of a government is determined by many factors, none of which is the acquiescence of the loser.

They know that walking out of Parliament ‘because we don’t recognize Mnangagwa’ is a stupid political stunt, which is why they accept new cars and allowances from a Mnangagwa-appointed non-constituency MP turned Finance Minister.

They know that ‘we don’t recognize Mnangagwa’ doesn’t extend to not recognizing his Minister of Justice, Legal and Parliamentary Affairs, who also happens to have been his Chief Election Agent (think Komichi for Nelson, that is who he was for the President). So when this Minister releases funds to pay for a seminar in Victoria Falls, they all troop there, forgetting legitimacy.

The churches are going to be vilified for pronouncing what we already know: everyone knows that Mnangagwa won the elections and is the legitimate President of Zimbabwe. The MDC knows this. As does Chamisa. As do their allies. 5 odd V11s were never going to change that reality.

But, as Madzimbamuto found out in court, even if Mnangagwa hadn’t won, (which is strenuously not the case, he won), but even if he hadn’t (he did, really), then by the doctrine of effective control, his would still be the legitimate government of Zimbabwe perfectly entitled to make laws and to expect those laws to be obeyed.

So that all this talk of legitimacy wat wat, this nonsense talk of dialogue with a foreign mediator is just plain that, nonsense. While there is some political advantage in keeping stupid people in election mode in order that they should stay angry enough for five years and vote for you, there is the sad reality that to all right-thinking people, this legitimacy spiel is nauseating.

Nothing will come of it because it’s inane. It will never get Chamisa what he demands: ‘talks as equals with Mnangagwa’ because he just isn’t, he lost. Brian Mteki lost the election for President, as did Lovemore Madhuku and Daniel Shumba et al. While Chamisa got more votes than they did, the sad reality for him and his backers is that in a contest in which there can only be one winner and no prizes for coming second, those people are his equals: fellow losers.

Holding the political conversation to ransom because you have a following does not bestow legitimacy to your argument. Being able to sabotage everything good that your opponent does is easy to do when your support is almost as high as the winner’s, but it doesn’t change the fact that ‘almost as high’ is really not good enough. Only ‘higher than everyone’ counts in a winner takes all contest.

After the case, Madzimbamuto remained detained. The Judicial Committee of the Privy Council (at the British House of Lords) would later agree with him, but IDS simply ignored them. They were, after all, foreigners meddling in our internal affairs. Sounds familiar?

Tinomudaishe Chinyoka is a qualified lawyer and social worker, living in Harare where he practices as an Advocate. He is a member of the ruling Zanu PF. Follow him on @TinoChinyoka