CHIEF JUSTICE’S MUGABE RESIGNATION CHALLENGE PROBLEMATIC
By Tererai Mafukidze & Jeremiah Bamu
1. The judgment of the Chief Justice Luke Malaba sitting in chambers of the Constitutional Court in the matter of Liberal Democrats and Others v President ED Mnangagwa and Others raises very serious questions. In this matter, two political parties named Liberal Democrats and Revolutionary Freedom Fighters together with Vusumuzi Sibanda, Linda Masarira and Bongani Nyathi sought direct access to the Constitutional Court in order to bring an application against President Mnangagwa, Vice President Constantino Chiwenga, the Zimbabwe Defence Forces, the Speaker of the National Assembly and Robert Mugabe. The Chief Justice had to decide whether it was in the interest of justice that direct access should be given. The alternative is for the applicants was start their case in a lower court.
The Essence of the Case
2. The essence of their case was that Mugabe’s resignation on 21 November 2017 was not free and voluntary. They alleged that it was a direct result of the military action of 14 November 2017 and the “presence of military vehicles in the streets of Harare between 14 and 21 November 2017.” They also alleged that the impeachment proceedings were “intended to aid and abet takeover of power by the military.” They also challenged the lawfulness of the assumption of power by President Mnangagwa on 24 November 2017.
3. The applicants were in default on the date of the hearing. No one appeared on their behalf.
4. In order for the Chief Justice to decide whether direct access should be granted, he had to consider the applicants’ prospects of success before the Constitutional Court. It is in the course of this consideration that the Chief Justice concluded that Mugabe had resigned of his free will. He held that the resignation of Mugabe was voluntary as evidenced by the letter of resignation and the communication with the Speaker on the day.
5. The Chief Justice decided the legality of the military action relying on the court order issued without reasons by the Judge President of the High Court Justice George Chiweshe in the caseJoseph Evurath Sibanda and Leonard Chikomba v President Of The Republic Of Zimbabwe, Robert Gabriel Mugabe N.O. and Minister Of Defence And Commander Of Defence Forces Of Zimbabwe and Attorney General Of Zimbabwe( HC 10820/2017) on 24 November 2017. HE came to the conclusion that: “The question of the lawfulness of the military action of 14 and 15 November 2017 was determined by the High Court…The applicants cannot seek to have the question of the constitutionality of the military action enquired into by the Court whilst the order of the High Court determining the same issue is extant.”
6. On the question whether the impeachment proceedings were at the behest of the military, the Chief Justice narrates in detail the events at the sitting of Parliament. He makes no specific reference to the military in dismissing this allegation. On the question whether assumption of office by President Mnangagwa was constitutional, the Chief Justice states that it was as the President assumed power replacing a Zanu PF person who had voluntarily resigned.
The Fundamental Error of Law
7. In our view, the Chief Justice makes a fundamental error of law in recognising a High Court judgment in Sibanda’s case that has no legal effect. Firstly, the High Court had no jurisdiction as the case brought by Sibanda could only be decided by the Constitutional Court. Alternatively, if the High Court had jurisdiction, the court order of the Judge President had no effect unless confirmed by the Constitutional Court.
The Sibanda Application
8. The Sibanda application was filed in the High Court on 21 November 2017 by Joseph Evurath Sibanda and Leonard Chikomba as first and second applicants. They cited“President of the Republic of Zimbabwe Robert Gabriel Mugabe N.O.”as first respondent, Minister of Defence, Commander of Defence Forces and the Attorney General as the other respondents. The application was for adeclaratory order “to the effect that the actions of the Defence Forces of Zimbabwe…are in conformity with the Constitution, enjoy its support, and are valid.”
9. The affidavit deposed to by Sibanda makes entertaining reading. We commend it to you for bedtime reading. He alleged that:
9.1 “When he (Mugabe) was Prime Minister, he was married to Mrs Sally Mugabe, a distinguished individual, mother of the nation, and a gallant fighter of the struggle…With time, First Respondent (Mugabe) married one GRACE MUGABE. Recently GRACE MUGABE, together with a gang going by the moniker G40, had unfortunately captured First Respondent. For that reason, he has been unable to execute his functions, and has completely abdicated his functions, which have now been exercised by his wife and the G40 gang.”
9.2 Mugabehas not been making key Government decisions, which have now been made by his wife and the G40. It is public knowledge that Grace Mugabe went on a crusade against the country’s former Vice President, Dr Mujuru, telling everyone that she was to be ousted. In the event, she was so ousted. The decision was, clearly, not of Mugabe.
9.3 Various office holders in the State and the ruling party, ZANU (PF), have lost their positions, simply because of Grace Mugabe’s usurpation of the powers of Mugabe.
9.4 Grace Mugabe has used her position, as the first lady, to coerce people into demanding that she be the country’s Vice President… At a rally she chided and berated First Respondent’s spokesperson, as if he was her employee… Very recently, Vice President ED MNANGAGWA, was relieved of his Constitutional Position, after Grace Mugabe and her gang had demanded his removal. Barely 24 hours after the call, he was unceremoniously dismissed on the basis of falsehoods…There have been serious purges in ZANU (PF) party, at the instance of Grace Mugabe and the G40, which have had the effect of destabilising the country.”
9.5 Having been satisfied that Mugabe’s senescence had led to senility, and that he had become an instrument in the hands of those around him, the Defence Forces Commander moved in to protect him, by weeding off the criminal elements which had positioned themselves around him. This had the desired effect of protecting Mugabe, and making sure that his execution of Constitutional Functions would become possible.
9.6 “The Defence Forces of Zimbabwe intervened because there had been an effective civilian coup, by G40, as the President of the country was no longer able to execute his functions, which were now being done by unelected individuals around him. In particular, the unelected first lady was now running Government business to the country’s prejudice. The economy had also ground to a halt by reason of that circumstance.”
9.7 “The action by the Defence Forces of Zimbabwe was necessary to avert the disaster of Constitutional crisis that the nation was descending into. Theirs is to uphold the Constitution and defend Constitutionalism.”
9.8 The popularity of the coup was not left out. “…Zimbabweans from all walks of life took part in a gathering and subsequent march in solidarity with the Defence Forces of Zimbabwe. The gathering and subsequent march was attended by more than 2 million Zimbabweans. Never in the history of the country have people from different races and political persuasion joined hands like they did on 18 November 2017…[1]”
9.9 The “necessity” of the action was emphasisedthus:“The people hailed the Defence Forces of Zimbabwe as having acted out of necessity to ensure preservation of Constitutional order and protection of the rights of the citizens…”
9.10 Necessity of the action of the Defence Forces was again punted to avert allegations of treason: “Despite the necessity for such intervention, a Senior government minister, a Mr KHAYA MOYO, announced that the actions of the Defence Forces of Zimbabwe could amount to treason. Those are hard words. They have the effect of destabilising the country. It is important that this court states that the actions are permissible, and were totally justified, the circumstances articulated above considered.”
10.Quite curiously, in one paragraph this is stated: Mugabe “has now been freed from those that had taken over his functions. He has remained able to execute his functions, explaining why on 17 November 2017, as the Chancellor of all State Universities, he officiated at a graduation ceremony at the Zimbabwe Open University.” One would assume from reading this that necessity had dissipated.
11.Also attached to the founding affidavit as annexure “B” was the statement by the Defence Forces’ Spokesman, Brig Gen Sibusiso Moyo read out on ZTV. The statement, of course, assured the nation of Mugabe’s safety; that the measures being taken would protect civil servants from purges; assure the judiciary of the ability to exercise its functions without fear of being obstructed by “criminals around” Mugabe; that Parliamentarians would be able to serve their constituencies “according to democratic tenets”, etc.
12.There is no evidence that Mugabe was aware of this application.
13.Dr Sekeramayi the then Minister of Defence and Gen Chiwenga both signed affidavits on 23rdNovember 2017 stating that they were consenting to the court order being sought by the applicants. No such consent was filed by or on behalf of Mugabe.
14.On 24 November 2017, the Judge President issued an order that reads:
“IT IS ORDERED BY CONSENT THAT:
1. The actions of the Defence Forces (Zimbabwe Defence Forces of Zimbabwe) in intervening to stop the take-over of first respondent’s constitutional functions by those around him are constitutionally permissible and lawful in terms of Section 212 of the Constitution of Zimbabwe in that:
a. They arrest first respondent’s abdication of constitutional function, and
b. They ensure that non-elected individuals do not exercise executive functions which can only be exercised by elected constitutional functionaries.”
IT IS CONSEQUENTLY ORDERED THAT:
2. The actions of the Defence Forces being constitutionally valid, second respondent has the right to take all such measures and undertake all such acts as will bring the desired end to its intervention.
15.It is important to note that section 212 of the Constitution was referred to in the application and in the court order isolation. Deployment of the Defence Forces is regulated under section 213. In terms of section 213(1), only the President, as Commander-in-chief of the Defence Forces, has power—(a) to authorise the deployment of the Defence Forces; or (b) has the power to determine the operational use of the Defence Forces. In terms of section 213(2), with the authority of the President, the Defence Forces may be deployed in Zimbabwe—(a) in defence of Zimbabwe; (b) in support of the Police Service in the maintenance of public order; or (c) in support of the Police Service and other civilian authorities in the event of an emergency or disaster. So who deployed the Defence Forces?
Executive Authority and Functions
16.We doubt that the High Court record in the Sibanda case was before the Chief Justice when he made his decision in the Liberal Democrats matter.
17.The essence of Sibanda’s case was that Mugabe had abdicated his constitutional responsibilities to his wife and G40 gang and no longer exercising his executive authority. That alleged conduct would naturally mean that the President was failing to fulfil his constitutional obligations. Secondly, the conduct of the President in abdicating constitutional responsibilities to his wife and the G40 would also be unconstitutional.
18.Section 88(1) of the Constitution states that: “Executive authority derives from the people of Zimbabwe and must be exercised in accordance with this Constitution.” Section 88(2) states that: “The executive authority of Zimbabwe vests in the President who exercises it, subject to this Constitution, through the Cabinet.” Under section 90(1), the President is required to “uphold, defend, obey and respect” the Constitution as “the supreme law of the nation and must ensure” that the Constitution and all the other laws are faithfully observed. Under section 110, the President is assigned various executive functions including making the appointments which the Constitution or legislation requires the President to make.
Did the High Court Have Jurisdiction?
19.Section 167 (2)(d) of the Constitution states that only the Constitutional Court may “determine whether…the President has failed to fulfil a constitutional obligation.” It follows therefore the question whether Mugabe had abdicated his constitutional responsibilities to his wife and G40 could only be decided by the Constitutional Court. It is the highest court in the land and has the exclusive jurisdiction to decide a matter of such serious constitutional and political consequences. That Court should have decided the legality of the November 2017 “Operation Restore Legacy” which removed a President from office.
20.The finding made in the High Court order that Mugabe was guilty of the abdication of constitutional functionis one that only the Constitutional Court should exclusively make.
21.Assuming we are wrong and the President’s abdication of constitutional function constituted unconstitutional conduct rather than a failure to fulfil a constitutional obligation, the question of the effectiveness of the High Court order remains. The court order issued by the Judge President could not be effective unless confirmed by the Constitutional Court. Section 167 (3) of the Constitution states that: “The Constitutional Court makes the final decision whether…conduct of the President…is constitutional, and must confirm any order of constitutional invalidity made by another court before that order has any force.”
22.Further, section 175(1) of the Constitution repeats the same jurisdictional issue and provides that: “Where a court makes an order concerning the constitutional invalidity of any law or conduct of the President…the order has no force unless it is confirmed by the Constitutional Court.”
23.The order of the Judge President was not confirmed by the Constitutional Court. A court order which is not confirmed cannot be extant. The order in Sibandawas not made by the Constitutional Court and neither was it confirmed by it. At the heart of the Sibanda application was the allegation that Mugabe had abdicated his constitutional role to his wife, Grace Mugabe and the G40. That alleged conduct resulted in the order made by Judge President Chiweshe. The order effectively meant that Mugabe had either failed to fulfil his constitutional obligations as President or had behaved unconstitutionally. The court order in Sibanda’s case is therefore not an effective order unless the Constitutional Court has determined the issue. The Chief Justice, we submit, committed an error of law by recognising the High Court order.
Emmerson Dambudzo Mnangagwa v Acting President Of The Republic Of Zimbabwe And Attorney General Of Zimbabwe HC 10940/2017
24.On 23 November 2017, Emmerson Dambudzo Mnangagwa filed an application in the High Court against the “Acting President of the Republic of Zimbabwe”and the Attorney General. He sought an order to declare as invalid his dismissal from the position of Vice President of Zimbabwe. Curiously, no one had actually assumed the acting president position. Mugabe’s other vice-president Report Phelekezela Mphoko was supposed to be the acting president in the absence of Mugabe. He was however reportedly in Russia after diverting from his official trip to Japan upon hearing of the coup.
25.In Mnangagwa’s application which he stated was under section 85(1) of the Constitution, he stated that he had not cited Robert Mugabe because he had resigned on 21 November 2017 just before he could be impeached. Mnangagwa argued that his dismissal by Mugabe on 6 November 2017 was a nullity. He alleged that Mugabe had failed to uphold his duties and functions as President under section 90 of the Constitution. He further alleged that Mugabe had abdicated his presidential duties and the powers of Cabinet to his wife Grace and the G40 who instigated his removal. He quoted the statement by Khaya Moyo on his dismissal which alleged misconduct and then stated that since misconduct was alleged, he had the right to a just administrative action under section 68 of the Constitution. He also alleged that Mugabe had breached his right to a fair hearing under section 69 of the Constitution. He further argued that since the Constitution does not provide for his removal from office on the basis of misconduct, Mugabe was supposed to have charged him with misconduct first. He further stated that: “Robert Gabriel Mugabe was being held captive by G40, at whose dictation he acted.” He alleged G40 and Grace Mugabe on occasions he acted as President, were doing as they pleased.
26.Mnangagwa also made this gem of an allegation:
“Robert Gabriel Mugabe acquiesced to the taking over of his functions by Grace Mugabe and G40. Robert Gabriel Mugabe was incapacitated. That he was incapacitated is apparent in that, at all public functions, he would, at all times, be dosing off, whilst proceedings were going on, with his wife taking over from him…Even his spokesperson, George Charamba, a senior Government employee, at one time was treated like a school boy at a rally, by Grace Mugabe, when Robert Gabriel Mugabe was dosing off…It would appear that Robert Gabriel Mugabe’s advanced age made him incapable of carrying out his functions in terms of the Constitution, to the extent that he would read a wrong speech at an official Government function.”
27.Mnangagwa further alleged that Mugabe on 21 November 2017 decided “to save face by depositing a resignation letter with the Speaker of Parliament, on the eleventh hour…” an event he alleged was a confirmation of the unconstitutional conduct of Mugabe.
28.Again this application was granted by consent and the order reads: IT IS ORDERED BY CONSENT THAT:
1. The dismissal of the applicant by Robert Gabriel Mugabe, the then President of Zimbabwe, from the office of the Vice President of Zimbabwe, on 6 November 2017, is null and void and, accordingly, of no force or effect.
2. There shall be no order as to costs.”
29.Again, as in the Sibanda case, the gravamen of the complaint was that Mugabe had abdicated his constitutional responsibilities. Mnangagwa directly alleged that Mugabe was guilty of unconstitutional conduct in dismissing him from office. As already stated above, only the Constitutional Court may “determine whether…the President has failed to fulfil a constitutional obligation.” In any event, any finding that Mugabe fired President Mnangagwa unconstitutionally could not be effective unless confirmed by the Constitutional Court as that Court makes the final decision whether…conduct of the President…is constitutional, and must confirm any order of constitutional invalidity made by another court before that order has any force.”
30.The court order made by the Judge President reversing the dismissal of President Mnangagwa has no force unless it is confirmed by the Constitutional Court. Of course, this may be a moot point as he became President on 24 November 2017.
CONCLUSION
31.The applicants in the Liberal Democrats matter were in default at the hearing of this matter. Only the Speaker of Parliament had filed papers in response to the application. He had two legal practitioners representing him before the Chief Justice in Chambers. The President, Vice President Chiwenga and Robert Mugabe did not file any papers. They were not represented at the hearing.
32.In our view, the Chief Justice should simply have dismissed the application for direct access due to the default of the applicants. To venture to recognise the order in Sibanda’s case is in our view an error of law. The Chief Justice should not have ventured further and find that Mugabe had resigned voluntarily. That matter, in our respectful view, should be reserved for the full bench of the Constitutional Court to decide. Challenges to usurpers of power have always come from indirect cases. There may yet be another challenge to the constitutionality of what occurred in November 2017. This was not the appropriate case to try and put a lid on it.
33.Only the Constitutional Court may determine whether the President has failed to fulfil a constitutional obligation. Any finding that the President acted a unconstitutionally could not be effective unless confirmed by the Constitutional Court. It is the Court that makes the final decision whether the conduct of the President is constitutional. It must confirm any order of constitutional invalidity made by another court before that order has any force. There are no short cuts.
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