NECESSITY IN A CONSTITUTIONAL CRISIS: A REVISIT OF MADZIMBAMUTOCASE IN THE CURRENT SITUATION OF ZIMBABWE

NECESSITY IN A CONSTITUTIONAL CRISIS: A REVISIT OF MADZIMBAMUTO CASE IN THE CURRENT SITUATION OF ZIMBABWE

By Tererai R. Mafukidze[1]

Key Note Address: delivered on 20 July 2018, Law Society of Zimbabwe Winter School, Victoria Falls, Zimbabwe

INTRODUCTION

1.    I have been given this unenviable honour of retraumatising some of you!  When Prof Welshman Ncube taught constitutional law in the University of Zimbabwe law school, way before he sought political office, reading Madzimbamuto trilogyfor his class or tutorial left you in need of counselling.  Prof Ncube’s habit of giving this painful assignment of reading the judgments and the accompanying journal commentary, in the first weeks of one’s constitutional law class qualifies as inhuman treatment and/or punishment of students just out of high school!

2.    I have been asked to address you on: “Necessity in A Constitutional Crisis”, drawing from the Madzimbamutotrilogy in the light of the coup d’etatthat occurred in November 2017. A coup is defined as the capture of power extra-constitutionally. 

3.    In his seminal paper titled “The Defence of Necessity”, the great scholar Glanville Williams[2]tells a story. He says: 

“The Chinese sage Mencius, a contemporary of Plato and Aristotle, was asked by Kwan: ‘Is it the rule that males and females shall not allow their hands to touch in giving or receiving anything?’ Mencius replied: ‘It is the rule’. Kwan asked: If a man’s sister-in-law be drowning, shall he rescue her with his hand?’ Mencius said: ‘He who would not so rescue the drowning woman is a wolf. For males and females not to allow their hands to touch in giving and receiving is the general rule; when a sister-in-law is drowning, to rescue her with the hand is a peculiar exigency.’

(I presume the sister-in-law mukadzi watsano not muramu because that would be a moot question for men from my clan. You rescue muramu by whatever part of her anatomy!)

4.    This took me back to my catechism class at Driefontein Mission in Mvuma 34 years ago, when Sr Ancilla Manyera taught us one of the commandments: “Remember the Sabbath and keep it holy.”

5.    Reading the New Testament, one is confronted with Jesus’s teachings about the Sabbath which reflect what Mencius called “a peculiar exigency”. In Luke 6:1-11, we read about Jesus’s hungry disciples plucking grain as they walked through a grain field on a Sabbath, to which the Pharisees objected as a breach of the Sabbath rule. Jesus declares that: “The Son of Man is lord of the Sabbath.”In Mark’s version, he states: “The Sabbath was made for humankind, and not humankind for the Sabbath…”Jesus went on to heal a man with a withered hand again on a Sabbath, challenging the Pharisees: “Is it lawful to do good or to do harm on the Sabbath, to save life or to destroy it?”In Luke 14:5, Jesus asked: “Suppose your child or ox fell into a ditch on the Sabbath day. Wouldn’t you immediately pull it out?” 

6.    In his speech in the House of Commons, on 18 November 1783 William Pitt said of “necessity”: Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.[3]

7.    We all know of the old lawyers joke about judges who are thought to be ignorant of the law. The judge would be called “Necessity J”. This is because of the old adage: necessity knows no law!

8.    The Doctrine of Necessity, or in its proper context, State Necessity, is a fascinating animal. It is an animal one generally rides in order to justify his or her own wrongdoing. It is one thing when used by a usurper and quite another when relied upon by a lawful leader/sovereign dealing with exceptional circumstances. By the time Madzimbamutowas heard, South African courts had long rejected the existence of the doctrine of state necessity under Roman-Dutch law.[4]

9.    Traces of the doctrine of State Necessity can be vividly seen in American jurisprudence. During the Civil War secessionist governments’ actions were challenged before the Supreme Court. Invariably, the Supreme Court held that though the rebel governments were unlawful certain of the actions they took were recognised as valid for so long as they were reasonably required for the ordinary orderly running of the State and were not done with ‘hostile intent’ in promotion of the rebellion.[5]

10.In the Pakistani case known as the Governor General’s Special Reference case No.1 of 1955[6]Munir CJ reached the conclusion that the common law doctrine of State Necessity could make what was unlawful lawful by necessity and stated:

“subject to the condition of absoluteness, extremeness and imminence,an act which would otherwise be illegal if it is done bona fide under stress of necessity, the necessity being referable to an intention to preserve the Constitution, the state, the society and to prevent it from dissolution, and affirms…necessity makes lawful which otherwise is not lawful.” (emphasis added)

11.The Court of Appeals of Grenada in Mitchell & Others v DPP (Grenada)[7]perhaps provides a comprehensive guide on the prerequisites for the application of the doctrine. It held that:

11.1      the imperative necessity must arise because of the existence of exceptional circumstances not provided for in the constitution, for immediate action to be taken to protect or preserve some vital function of the state;

11.2      there must be no other course of action reasonably available;

11.3      any such action must be reasonably necessary in the interest of peace, order and good government but it must not do more than is necessary or legislate beyond that;

11.4      it must not impair the just rights of citizens under the constitution;

11.5      it must not be one the sole effect and intention of which is to consolidate or strengthen the revolution as such.[8](emphasis added)

            

MADZIMBAMUTO

12.The historical context is very important. Stella Madzimbamuto’s legal challenge sought to meet the crisis created by Ian Smith’s 11 November 1965 Unilateral Declaration of Independence (“UDI”). 

13.Present day Zimbabwe, previously Southern Rhodesia/Rhodesia was conquered by the British South Africa Company ostensibly on behalf of the Crown. The decision of the Privy Council in In re Southern Rhodesia[9]confirmed that natives had lost land by conquest. The Queen had granted the BSA Company a charter in 1889 after the company dangled a Lobengula-signed Rudd Concession.  Thenceforth, the BSA Company exercised executive authority with some restrictions up until 1923, when the first Southern Rhodesian constitution was promulgated. In 1923, Southern Rhodesia became a British colony in the proper sense. The British parliament had the responsibility to promulgate constitutions on behalf of Southern Rhodesia. 

14.The 1923 Constitution, the Federal Constitution of Rhodesia and Nyasaland of 1953 and the 1961 Constitution were promulgated in terms of Acts of Parliament passed by the United Kingdom legislature. 

15.The 1923 Constitution followed a referendum on whether Southern Rhodesia should become a province of South Africa.  The majority of the voting Europeans elected to retain Southern Rhodesia as a separate country. The 1923 Constitution effectively created a responsible government.  The United Kingdom government retained certain constitutional power. 

16.After the requests by the Southern Rhodesian government in 1959 seeking revision of the 1923 Constitution, the British Government agreed to give up some of its constitutional powers and transferred it to Southern Rhodesia. The 1961 Constitution conferred on Southern Rhodesia the power to amend its own constitution and also contained a Declaration of Rights. A Constitutional Council was also created with the ostensible intention of safeguarding human rights. However, it could only make recommendations if a new legislation was regarded as being contrary to the Declaration of Rights.[10]It had no power with regards to legislation passed before the Constitution was promulgated. As a result, Africans continued to be arrested without trial and were denied basic human rights under repressive legislation already in existence. 

17.A complicated electoral system was added into the mix. However, it reserved only 15 of the 65 seats for Africans who numbered about 4.5million.  50 were reserved for the 223 000 whites.  The constitution could be amended by a vote of 44 members.  However, under the constitution, the Rhodesian parliament did not have the power to abolish appeals to the Judicial Committee of the Privy Council (Privy Council).  But it had the “power to change the legal substance of its subordination to Britain.”[11]

18.The British had started to relent and were granting independence to many of their colonies in the 1960s. The 1961 constitution was targeted at granting majority rule in Rhodesia gradually.  Ian Smith and his Rhodesian Front decided that the natives should not be granted independence and majority rule in Zimbabwe. They decided to perform a coup on the Crown and establish an “independent” African country run by the minority whites. 

19.On 11 November 1965, Ian Smith announced their Unilateral Declaration of Independence (UDI) from the British Government. The UN Security Council immediately imposed a set of sanctions. The British government declared this action to be illegal. Only South Africa and Portugal recognised the new “independent” Rhodesia.[12]

20.On 16 November, 1965 the United Kingdom Parliament promulgated the Southern Rhodesia Act, 1965. The statute reaffirmed the 1961 Constitution and denounced the rebellion. The UK Government then issued the Southern Rhodesia Constitution Order 1965, which categorically stated that any purported change of Government other than by means prescribed by 1961 Constitution would be void and of no effect. The Order had retrospective effect to the day of UDI, that is, 11 November 1965. [13]The Southern Rhodesia Act of 1965declared the regime illegal and made UDI treasonable. Smith and his Cabinet were considered by the Crown to be private persons unable to make any laws or run government.  However, Ian Smith and his cohorts remained in effective control of government. 

21.The 1961 and 1965 British Acts of Parliament stipulated that the Southern Rhodesian Constitution could only be amended by acts of the British Parliament. As Mutiti notes: 

“Although under the Rhodesia Act, 1965, of the British Government, Smith and his Cabinet are considered private persons, Britain discussed all the Rhodesian constitutional matters with them.” [14]

22.On being challenged by a Member of Parliament during a sitting, the Speaker of Parliament ruled that the 1965 Constitution was now binding on Parliament. 

23.The Rhodesian Government promulgated the Constitution (Ratification) Act No.1 of 1966. It ratified and confirmed the 1965 Constitution. The 1965 Constitution provided that:

23.1       no United Kingdom Act of Parliament shall extend to Rhodesia unless extended thereto by an Act of the Rhodesian Legislature;

23.2       the Colonial Laws (Validity) Act 1865 shall not apply to its law, and

23.3       the right of appeal to the Judicial Committee of the Privy Council was abolished.[15]

24.The Rhodesian 1965 Constitution sought to legalise the seizure of power. It also removed the power United Kingdom had over Rhodesia.  The Governor, who represented the Queen, was no longer recognised as head of state. It effectively ended British authority over Rhodesia. 

25.A constitutional crisis had thus arisen.[16]The Madzimbamuto case brought this constitutional crisis to the fore.

26.Subsequently, on 2 March 1970, the Rhodesian government via a new 1969 Constitution proclaimed Rhodesia a “republic”. The British government maintained that like the 1965 UDI, the republican status was illegal.  The 1969 Constitution was meant to entrench white minority rule. It was deeply discriminatory. It was also very restrictive on land apportionment. Because land was being apportioned, many African families were moved from their land. The most famous example is the Tangwena people who were moved from Gaeresi between 25 and 27 July 1972. The land had been classified as European. 

27.As I have already stated, the 1923 and 1961 constitutions were promulgated by Britain’s parliament.   The 1965 and 1969 constitutions were promulgated by Rhodesia’s parliament in defiance.  The two were deemed illegal under the UK Rhodesia Act of 1965. Ian Smith’s regime remained the de factogovernment in Rhodesia and in control of the State apparatus. [17]

28.Smith held on for 15 years until he relented and signed the Lancaster Agreement in 1979 bringing the end of a brutal war of liberation. On 18 April 1980, the Union Jack was brought down and the new Zimbabwe flag was raised up. Ian Smith’s Rhodesian flag had been brought down quietly after the signing of the Lancaster Agreement which returned the colony back to the Crown. The Queen promulgated the Lancaster Constitution for Zimbabwe. The Constitution provided for a titular president and a Prime Minister. Robert Mugabe became the Prime Minister after his party Zanu PF won the elections. 7 years later he changed the Constitution and created an American style executive presidency which he assumed. He remained in power for the next 30 years. His election was repeatedly contested, and his party Zanu PF remained in power. 

THE MADZIMBAMUTO CASE

29.  Daniel Nyamayaro Madzimbamutohad been in detention for several periods since 1958. On 19 June 1965 Madzimbamuto was restricted under the Law and Order (Maintenance) Act, 1960. 

30.  On 6 November 1965 he wasdetained under the Emergency Powers Actafter the declaration of state of emergency on that day.  Before UDI, the detention was lawful.  Under the 1961 laws, the state of emergency would expire after 3 months.  What changed now was that Parliament in Rhodesia sitting under the new 1965 Constitution authorised the extension of the state of emergency and the extension of detention of persons who had been detained under the preceding emergency. 

31.Mrs Stella Madzimbamuto then challenged the continued detention of her husband.  In this challenge, she argued that the Smith government was acting contrary to established law under the 1961 Constitution and the UK Southern Rhodesia Act 1965.

In the High Court[18]

32.The matter came before 2 high court judges appointed under the 1961 Constitution.  They had taken oaths under that Constitution.  The 1965 Constitution sought to provide for the continuation in office of the judges appointed under the 1961 Constitution. The Prime Minister was given the power to require “a judge to state forthwith whether he accepts this Constitution.”  If the judge refused, then the judge’s post would be deemed vacant.  The Prime Minister had not required any of the judges to do this, though it is said Lardner-Burke had attempted to have Beadle CJ take the new oath. The two judges who heard the matter avowed that they would sit as judges under the 1961 Constitution.[19]

33.The High Court held that: even though the Smith regime had the effective and total control of Rhodesia, it could not be said that there had been a successful revolution as Britain had not abandoned sovereignty over Rhodesia. The judges recognised that the British government was taking action to reverse the revolution and that the efforts could not be said to have failed. 

34.Lewis J stated that the judges derived their power under the 1961 Constitution and not the 1965 Constitution. 

35.Mr Lardner-Burke had in addition argued that even if it was not the de juregovernment it was the de factogovernment and in effective control of the government.  He wanted the court to recognise those of its acts which were done for the preservation of law and order.[20]

36.On behalf of Mrs Madzimbamuto, it was argued that the fact that the Rhodesian government was in effective control was irrelevant.  It was further argued that since the court was bound by the 1961 Constitution it could not recognise the so-called Parliament of Rhodesia. It could neither recognise the action of the ministers who had been dismissed by the Queen. “The court should not be swayed by arguments that the measures of the unlawful regime were necessary for the preservation of peace and good government. The way to preserve those was for the rebel regime to return to legality.”[21]

37.The High Court held that though a court sitting under the 1961 Constitution, the declaration of the state of emergency and the detention of Madzimbamuto although unlawful should be recognised as valid measures for the maintenance of peace and order by the de factogovernment. 

38. The High Court rejected the regime's position that it was a de juregovernment by virtue of its effective control of the country in the complete overthrow of the old order. The court accepted Kelsen's doctrine of revolutionary legality. It also approved the Pakistani decision in Dosso. 
39. However, the two judges took two different positions.  Justice Lewis held that the actions of the extraconstitutional regime were valid on the basis of the doctrine of state necessity. Justice Lewis stated that: 

the government is, however, the only effective government of the country, and therefore on the basis of necessity in order to avoid chaos at the vacuum in the law, this court should give effect to such measures of the effective government, with less selective and administrative, this can lawfully be taken by the lawful government under the 1961 constitution for the preservation of peace" government and the maintenance of law and order…The extensions of the state of emergency and the detention measures were all within that category; they had not been shown in their purpose to have been hostile to the authority of the sovereign power or to have impaired the just rights of citizens under the 1961 Constitution or to have been taken with actual intent to further the revolution.” 

40. Lewis J went further and stated that courts have a “duty to assist in the good governance of the country.”[22]
41. Justice Goldin on the other end upheld the actions on the basis of the doctrine of public policy. Goldin J stated that public policy was an offshoot of natural law which is part of Roman Dutch law and that it could therefore operate in an unprecedented situation “to prevent the law achieving a result inconsistent with the ethos of the community.” Analysts have doubted whether the public policy can be used to positively to enable instead of a basis to invalidate.[23]

42.The challenge failed. 

Appellate Division[24]

43.Mrs Madzimbamuto then appealed to the Appellate Division and the case was heard by 5 judges. There were separate judgments. CJ Beadle held that the 1961 Constitution had been suspended, while at the same time the 1965 constitution was not de jure. The court’s authority was derived from the fact that the Government in power allowed it to function.[25]The government in power could do anything the preceding governments could do. Beadle CJ relying on Dossoand Matovustated that the two cases show that success alone is the determining factor. He noted that the British were trying to undermine the Smith regime. He held that the regime was a fully de factogovernment in the sense that it was in effective control of the state and that control seemed likely to continue. At that stage it could not be said that it was yet so firmly established as to justify a finding that its status is that of a de juregovernment. Beadle CJ declined to apply the doctrine of state necessity on the grounds that it is so imprecise in its application. He also refused to apply the fundamental principle that nobody may take advantage of the necessity of his own making. He opined: 

“The present Government has effectively usurped all the governmental powers under the old Grundnorm, but has not yet succeeded in setting up a new Grundnorm in its place. As a result of this effective usurpation, it can do anything which the Government it usurped could have done, but until the present Government has achieved the status of de jure Government, and the revolutionary Grundnorm becomes the new Grundnorm, it must govern in terms of the old Grundnorm [and] until its new constitution is firmly established, and has thus become the de jure constitution of the territory, its administrative and legislative acts must conform to the 1961 Constitution.”[26]

44.Justice Jarvis held that the court was a court under the 1961 Constitution as the regime had not usurped its functions. The regime was de factoand not de jure. He therefore gave legal effect to any of the acts which could have been lawfully done under the 1961 Constitution.  

45.Justice Macdonald held that he owed allegiance to the “State of Rhodesia” and that the Queen and the United Kingdom had withdrawn its protection and forfeited its claim to allegiance.  He held that the government was both de jureand de facto. The 1965 constitution was now the de jureconstitution.  The court was now exercising its authority under the new regime and not the 1961 Constitution.[27]

46.Justice Quenet held that the 1961 constitution had disappeared and that the regime and the 1965 constitution had acquired “internal de jure status”. 

47.Justice Fieldsend maintained that the courts derived their authority under the 1961 Constitution.  The yardstick for deciding challenges remained that 1961 Constitution.  The Smith regime without a judicial arm could not be said to be exercising de facto government. A “court owing its existence to a lawful constitutional order could not recognise the existence within its own jurisdiction of a rebel de facto government.”[28]In his own words, he stated:

“Judges appointed to the office under a written constitution, which provides certain fundamental laws and restricts the manner in which those laws can be altered, must not allow rights under that constitution to be violated. This is a lasting duty for so long as they hold office, whether the violation be by peaceful or revolutionary means…The court must stand in the way of a blatantly illegal attempt to tear up a constitution.  If to do this is to be characterised as counter-revolutionary, surely an acquiescence in illegality must be equally be revolutionary. Nothing can encourage instability more than for any revolutionary movement to know that if it succeeds in snatching power it will be entitled ipso facto to complete support of the pre-existing judiciary in their judicial capacity. It may be a vain hope that the judgment of a court will deter a usurper, or have the effect of restoring legality, but for a court to be deterred by fear of failure is merely to acquiesce in illegality.” (emphasis added)

  

48.Fieldsend AJA was prepared to accept that though the Smith regime could not be recognised as de factogovernment, the situation on the ground could necessitate the recognition of certain state actions of ordinarily running the state. He was prepared to accept that the state of emergency could continue as it was necessary for the preservation of peace and order.Fieldsend AJA  believed that a court is not a creature of Frankenstein which ones created can turn and destroy its maker.

49.Madzimbamuto scored a technical success. There was a technical flaw in Madzimbamuto’s detention order, which allowed him success. This was corrected within 24 hours and Madzimbamuto remained in detention.

50.Mrs Madzimbamuto’s application for leave to appeal to the Privy Council was denied. The 1965 Constitution had removed appeals to the Privy Council.

Before the Privy Council[29]

51.The Privy Council gave Mrs Madzimbamuto leave notwithstanding the government’s statement that it would not recognise the decision of the Privy Council.[30]Mrs Madzimbamuto had in fact succeeded in the Appellate Division and was awarded costs.  The Privy Council saw through the “success”. Lord Reid stated:

“But the appellant's success was short lived. Immediately a new Order was made under the former section and in fact the appellant's husband was never released from custody. In their Lordships' view it is implicit in the judgment of the Appellate Division in this case that the section of the Emergency Regulations under which the new Order for the detention of the appellant's husband was made is one which the Court must recognise as valid. Therefore that judgment is a determination of the validity of the Regulation: on the authority of that judgment all Rhodesian Courts would so decide.”[31]

52.In the Privy Council, Lord Reid for the majority held that: the acts of the Smith government and the Rhodesian parliament lacked legal validity.  The Queen remained Sovereign in Southern Rhodesia. Concepts of de jureand de facto were inappropriate when one is dealing with the legal position of a usurper within a territory in which the Sovereign’s judges sat.[32]He further held that the judges could not disregard the legislation passed or authorised by the Queen’s Parliament. The Queen’s Order-in-Council of 1965 had declared every act done under the purported 1965 Constitution to be null and void. No doctrine of necessity could override the Sovereign’s law. Lord Reid stated:

“Her Majesty’s judges have been put in an extremely difficult position.  But the fact that the judges among others have been put in a very difficult position cannot justify disregard of legislation passed or authorised by the United Kingdom Parliament, by the introduction of a doctrine of necessity which in their Lordships’ judgment cannot be reconciled with the terms of the Order in Council. It is for Parliament and Parliament alone to determine whether the maintenance of law and order would justify giving effect to laws made necessary for that purpose.”[33]

53.Lord Pearce in dissent held that there was limited scope for the doctrine of necessity outlined by Justice Fieldsend. He, relying on American case law, stated that though the actions of the rebel government were not per se valid, “acts done by those actually in control without lawful validity may be recognised as valid or acted upon by the Courts, with certain limitation…”[34]

54.Justice Fieldsend and Justice Dendy Young resigned in protest when the Smith Government stated that it would not recognise the decision of the Privy Council. 

55.In Dhlamini and Others v Carter, N.O., and Another, N.O.(2),[35]the Appellate Division refused to grant a stay of execution of a death sentence pending an appeal to the Judicial Committee of the Privy Council because it considered any order of the Judicial Committee of the Privy Council would be a brutum fulmen. No Court sitting under the 1961 Constitution could, in the proper exercise of its discretion, have refused to grant a stay on this ground. The government announced that it would not recognise a stay of execution and went on to hang the three notwithstanding that they had received a Royal Pardon from the Queen.  On 6 March 1968 three ZANU activists: James Dlamini, Victor Mlambo and Duly Shadreck were hanged. They became the first political prisoners to be executed in this period.  They had been convicted of petrol bombing a car driven by a Rhodesian reservist Pieter Oberholzer who subsequently died from the injuries.[36]

THE AFTERMATH OF THE PRIVY COUNCIL DECISION: R V NDHLOVU & OTHERS

Immediately following the Privy Council judgment in Madzimbamuto v Lardner-Burke,[37]the Rhodesia High Court was confronted with the case of R v Archion Ndhlovu and 31Others[38]in which thirty-two Africans were on trial on charges preferred under an amendment to the Law and Order (Maintenance) Act (Cap 39 of the Laws of Southern Rhodesia) passed by the usurping Smith regime.  The argument by the accused was that the indictment disclosed no offence since the Rhodesian legislature could not make valid laws.  The exception to the indictment was based on the decision of the Judicial Committee of the Privy Council in the case of Stella Madzimbamuto v Lardner - Burke and Another, in which the majority of the Board held that all the provisions of 'the Order in Council' 'had full legal effect in Southern Rhodesia'.  They excepted to the indictment as disclosing no offence, because   they argued that, in view of sec. 3 of the Southern Rhodesia Constitution Order, 1965 (S.I. 1965, No. 1952 United Kingdom), the Legislature of Southern Rhodesia was unable to make any lawful laws. Act 50 of 1967 was thus an unlawful Act and the provisions of sec. 48A were null and void. The trial Judge rejected the Privy Council decision in Madzimbamuto, overruled the objections and recognized the government as de jure.  At the request of the accused he reserved the questions of law.

56. R v Ndhlovu gave the Appellate Division a chance to reply to the Privy Council. Beadle CJ was of the view that it could now be predicted with reasonable certainty that the British government would not, in the foreseeable future, succeed in unseating the UDI regime. The court was no longer sitting under the 1961 constitution which had been annulled by the efficacy of the change. The court had finally unanimously recognized that the revolution had succeeded and the government and its Constitution of 1965 were de jure:

“If a Judge appointed under the 1961 Constitution comes to the conclusion that the 1961 Constitution has been annulled by the efficacy of the change, his jurisdiction in terms of the 1961 Constitution comes to an end, and he can adjudicate no further as a Court under that Constitution. In these circumstances, the Judge is faced with two alternatives; either  (1) to leave the Bench without adjudicating at all on the matter, or (2) to carry on and adjudicate as a new Court. The Judge's choice here is whether he stays or goes.

Because of this Court's finding of fact that the British Government will not regain control, and also because of the ruling of the Judicial Committee of the Privy Council that the Southern Rhodesia Constitution Order in Council 1965 has full legal effect in Rhodesia, it is no longer possible for a Judge of the High Court to continue to sit as a Court under the 1961 Constitution.

The Judges of the High Court are, therefore, now faced with the agonizing decision of deciding whether they will go or carry on as Judges in the new situation in which they now find themselves.

The choice now before the Judges is this: Is it better to remainand carry on with the peaceful task of protecting the fabric of society and maintaining law and order as a Court, other than a 1961 Constitution Court, or is it better to go, even though going may (to quote Lord PEARCE) cause'chaos and work great hardship on the citizens of all races and incidentally damage that part of the realm to the detriment of whoever may be ultimately successful?'

In the circumstances, it is better for the Judges to carry on as a Court in the new situation.”

57.There are many cases in the common law jurisdictions that have had to confront the validity of coups. It is not necessary to analyse each of them. There are some important issues to be noted though.

The Dosso Case: Pakistan 1958

58. A general election was scheduled for February 1959 in Pakistan. One October 7, 1958 the president Iskandar Mirza issued a proclamation in which he abrogated the constitution, dissolved the national and provincial assemblies, declared martial law, then appointed the commander-in-chief of the army as the chief martial law administrator. The president then issued the Laws (Continuance in Force) Order whereby all laws were to remain in force as may be in accordance with the late constitution subject to the unfettered legislative capacity of the martial law regime. The real motive of the coup was to forestall initiation of representative democratic governance.[39]The validity of the coup was tested in the form of criminal appeals. The court relying on Kelsen's theory of evolutionary legality adopted the proposition that the efficacy of the coup is the basis of its validity. It further stated that the coup having been successful satisfies the test of efficacy.  The court was deciding this just 20 days after the coup had happened. In the court did not refer to any evidence which formed the basis that the course was efficacious[40]. As Mahmud comments: 

"Before Dosso, the doctrine of state necessity had furnished common law courts with the framework to validate extra-constitutional acts of lawful regimes. But the recognition of usurpation of extra-constitutional power by the doctrine of state necessity came with narrowly circumscribed limits regarding the "exercise of such powers, to what ends, and for how long”. 

59. In the Governor-General's Case, the Pakistani court had itself limited the doctrine to action taken by the existing lawful sovereign, confined the scope of extra-constitutional power to acts immediately necessary for the preservation of the state, the limited its duration to the period necessary to recreate appropriate constitutional legislative organs.[41]. Dosso subsequently became the judgment relied upon by courts whenever the courts sought to bestow judicially pronounced legitimacy upon coups. 

"The doctrine of revolutionary legality is attractive to both coup instigators and sympathetic courts because it unfetters the legislative  capacity of extra-constitutional regimes and cloaks such regimes with legitimacy simply on the basis of the success of the underlying treason."[42]

60. The Matovu Case Uganda 1966: after instabilities within a coalition government and calls to investigate Obote and Idi Amin (army second in command) for corruption on February 26, 1966 the Prime Minister Milton Obote with the support of the military assumed the full powers of government. He suspended the National Assembly and abrogated the 1962 constitution. He had the support of Idi Amin. On 15 April 1966 the National Assembly was reconvened hastily to approve a new constitution that provided for an executive presidency in the unitary state. Opposition to these developments prompted Obote to declare martial law on 20 May 1966. As happens, a Buganda chief detained under the provisions of the new constitutional challenge to the legality of his detention. He argued that the detention order violated his fundamental rights as provided for under the 1962 constitution. He argued that the 1962 constitution remained the supreme law. The court held that events from February to April 1966 were as the Pakistani court had held law creating fact appropriately described in law as a revolution. That there had been an abrupt change but contemplated by the existing constitution. A new constitution was in place together with an effective government. The 1962 constitution had therefore been abolished as a result of the victorious revolution.  It no longer existed and did not form part of the laws of Uganda. It had been deprived of its de facto and de jure validity. The 1966 constitution was therefore the new legal order and had been effective since it came into force in April 1966. The Ugandan court referred to evidence submitted through affidavits to show that the new order was efficacious. The court set out for cardinal requirements in international law for the validity of the 1966 constitution: (a) that there must be an abrupt political change (b) that is coup or a revolution; (c) that change must not have been with in the contemplation of an existing constitution; (d) the change must destroy the entire legal order except what is preserved; and (e) the new constitution and government must be effective. It went on to say that the laws which derived from the old order may remain valid under the new order only because validity is expressly or tacitly invested in them by the new constitution. Only the content of these old norms remain the same and not the reason of the validity. 
61. The 1975 Cyprus case of Liasi v Attorney General[43]which held that: 

"The first, the substantial test, is popular acceptance, even if a tacit one, of the change and the legal values thereby invoked and the second, the formal test, is the legalization of the "Coup d'etat Government" through the recognition of its actions by the next lawful Government." 

62. The Liasi court introduced "the popular acceptance" test for legalization of a coup. Mahmud cricitizes this. He states: "this only exacerbated the evidentiary problems for a court attempting to determine the success of a coup d'etat and further confuse… issues of legitimacy and validity of a legal order."[44]
63. The other interesting case to examine briefly is the Pakistan case of Bhutto v Chief of Staff.[45]Elections had been rigged in Pakistan in early 1977 which resulted in mass protest and civil disobedience. On July 5, 1977 the military declared martial law. It removed and detained the Prime Minister and dissolved Parliament. The military took the position that the constitution need not been abrogated. Only the operation of certain parts of the Constitution had to be held in abeyance. The Prime Minister was then detained under Martial Law Order number 12 of 1977. This was then challenged before the Supreme Court as a violation of fundamental rights granted by the 1973 constitution. The martial law order ousted the jurisdiction of the courts. The Chief Justice however accepted the petition to the Supreme Court. He was then removed by the military within two days of for accepting the petition. The court concluded that the coup was "an extra-constitutional step, but obviously dictated by the highest considerations of state necessity and welfare of the people".It further held "the phase of constitutional deviation dictated by necessity." 
64. In the years that followed the military removed Superior Court judges they did not want. The phase of constitutional deviation lasted over eight years with martial law lifted on December 30, 1985.
    
    
65. The Mitchell Case in Grenada, 1986: on 13 March 1979 a leftist political party in Grenada staged a coup against a notoriously corrupt Prime Minister and assumed power as the People's Revolutionary Government (PRG). The PRG suspended the constitution although the Queen remained the head of state and the governor general remained in office. It took all executive and legislative power and abolished appeals to the Privy Council. It established new superior courts. Existing laws continued in force, except as amended or repealed by the PRG. On October 19, 1983 following some disagreement within the PRG the Prime Minister and other ministers were killed. A General of the army assumed power and declared himself chairman of the Revolutionary Military Council (RMC). Six days later the United States and some Caribbean states invaded Grenada. It arrested members of the RMC. After these hostilities ceased on October 31, 1983, the Governor-general issued a proclamation whereby he assumed the executive control of the government of Grenada. He also declared a state of emergency, assumed legislative power and declared the continuation of laws in force before October 19, 1983 subject to modifications. On 9 November 1984, the Governor-General promulgated the Constitution of Grenada Order 1984 which revived the 1973 constitution. In August 1984, 19 leaders of the RMC were charged for trial before the High Court of Grenada. The leaders then challenged the constitutionality of the existence of the High Court. They claimed that it was part of the judicial system which the PRG had created in a manner contrary to the 1973 constitution and therefore invalid.[46]In the High Court it was accepted that: "there's no doubt that the revolution was a popular one and welcomed by the majority." 
66. It held that the High Court had the jurisdiction to try the accused on the grounds of necessity. Further held that though the Governor General's actions were extraconstitutional, jurisdiction over the matter was on grounds of public necessity. 
67. On appeal, Haynes P (the President of the Court of Appeal)  held that while he was unable to find that the PRG had ever attained de jure status the high court was temporarily valid on grounds of state necessity, until such time as the current government took appropriate steps to reinstate the court created by the 1973 constitution. He listed the requisite conditions for the application of the doctrine of state necessity: 

(i)            an imperative necessity must arise because of the existence of exceptional circumstances not provided for in the constitution, for immediate action to be taken to protect or preserve some vital function of the State; 

(ii)           there must be no other course of action reasonably available; 

(iii)         any such action must be reasonably necessary in the interest of peace, order, and good government; but it must not do more than is necessary or legislate beyond that;

(iv)         must not impair the just rights of citizens under the constitution;

(v)          must not be one is so effective an intention of which is to consolidate or strengthen the revolution as such. 

68. Haynes P, listed four conditions for a revolutionary regime to become valid and legitimate:

68.1      "the revolution was successful, in that the government was firmly established administratively, there being no other rival;

68.2      the rule was effective, in that the people by and large will be living in conformity with and obeying its mandates;

68.3      such conformity and obedience was due to popular acceptance and support and was not mere tacit submission to coercion or a fear of force; and

68.4      it must not appear that the regime was oppressive and undemocratic." 

69.He cautioned that: "courts should not take an approach which might encourage power-seeking politicians or overambitious army officers to believe that, if by force of arms they can grab and attain governmental power for a few years, the government will become consequently lawful and legitimate."He rejected the High Court's finding that the revolution was a popular one. He said the sovereignty lay with the people.

70. Peterkin J concurred with both conclusions. Liverpool J concurred with validation of the High Court on grounds of necessity but also held that the PRG had become legitimate or lawful government. He further expressed the position that sovereignty or revolutionary legality, or de jurestatus ultimately depends on consent or acceptance by the people which is manifested by their obedience to the precepts of those claiming to exercise authority over them.
    
    

71.In Mokotso case Lesotho 1988: in this case the High Court of Lesotho held that while a revolution requires acceptance to be deemed effective, acceptance does not mean that the new order has to be popular, but simply involves acquiescence, submission, obedience and acceptance. The court insisted that it is the people not the court will in reality by their acceptance of conferred legality upon the government. The court then assessed the popularity of the revolution andtook judicial notice of facts which included: the government's promotion of health and education, establishment of peace and stability and jubilation when the people heard of the coup.[47]

THE NOVEMBER 2017 COUP

72.Robert Gabriel Mugabe was born in 1924. His succession had been the subject of talk for years but Mugabe showed no signs of wanting to hand over power.  In 2004, he viciously punished those he held responsible for what became known as the Tsholotsho Declaration.  This Declaration was meant to elevate ED Mnangagwa to the presidency of the country and party and succeed Mugabe.  At the 2004 Zanu PF Congress, Joice Mujuru was elevated to the position of Vice-President of the party and simultaneously of the country thereby blocking Mnangagwa’s ascendancy. 

73.10 years later, in 2014, suspecting one of his vice presidents, Joice Mujuru to be keen on wrestling power from him, Mugabe kicked her out of the party and Government. Mugabe’s wife, Grace was the chief instrument used in denigrating Mujuru in a series of rallies. Mnangagwa in fact seemed to revel in the slaughter of his nemesis. 

74.The same Grace-process repeated itself quite unexpectedly between 2015 and late 2017. Mugabe had a fall out with one of his two vice presidents Mnangagwa. Mnangagwa had been for years expected to be the chosen successor. He enjoyed the support of the military command. Surprisingly, Mugabe and Grace took turns to bash him at political rallies for much of 2017.  Grace was the unstrained and vicious attack dog. She appeared to harbour her own political ambitions and made no secret of it. She became the face of what came to be known as G40—a group of younger Zanu PF politicians opposed to Mnangagwa’s “Lacoste” faction. 

75.Things came to a head when Mnangagwa suspected that he had been poisoned at a political rally in Gwanda in August 2017. Mugabe and Grace were present. He was rushed to South Africa for treatment. Mugabe was unhappy with the accusations that this was an elimination arranged by his or wife’s faction. The relationship between Mugabe and Mnangagwa deteriorated further. 

76.At a rally in Bulawayo at White City stadium on 4 November 2017, Mugabe threatened to dump Mnangagwa after he accused him of arranging Zanu PF youths to boo Grace during her address. Mnangagwa sat stoically a few metres from the podium.  Mnangagwa and his wife were reportedly skipped when the round of Gushungo ice cream was served at the high table. 

77.On the next day at a special “church” rally in Harare, Grace undressed Mnangagwa further. She even accused him of having plotted a coup against Mugabe in the early days of Independence.  

78.On Monday 6 November 2017, Mugabe dismissed Mnangagwa as vice president, and ZANU PF dismissed him too as party vice president. Mnangagwa ran off to South Africa fearing for his life. 

79.Meanwhile, the army commander Gen Constantino Chiwenga had reportedly travelled to China. On his return on 11 November 2017, it is said that the Police were sent to arrest him at the airport on some trumped up charges. This was suspected to be part of the move to nip any potential resistance from the military command. It was rumoured that he escaped arrest as soldiers intervened and subdued the police at the airport. 

80.On Monday 13^thNovember 2017, General Chiwenga held a press conference in which he warned Mugabe that the army would protect the “Revolution”. He stated that as the military they were are obliged to take corrective measures when the gains of the liberation struggle are threatened and would not hesitate to step in to protect the “revolution”. He further stated that: 

“It is our strong and deeply considered position that if drastic action is not taken immediately, our beloved country Zimbabwe will definitely be headed to becoming a neo-colony again.”[48]

81.Gen Chiwenga’s statement was basically about Zanu PF politics, the liberation struggle and supposed “mafikizolo” threats to the revolution. But there was an ominous warning in the statement.  The Gen stated:

“It is our strong and deeply considered position that if drastic action is not taken immediately, our beloved country Zimbabwe is definitely headed to becoming a neo-colony again. The current purging and cleansing process in Zanu-PF which so far is targeting mostly members associated with our liberation history is a serious cause for concern to us in the Defence Forces.”[49]

82.He also, curiously, added this line which became important when they sought to sanitize the coup through judicial means: 

“From a security point of view we cannot ignore the experiences of countries such as Somalia, DRC, Central Africa Republic and many others in our region where minor political differences degenerated into serious conflict that had (sic) decimated the social, political and economic security of ordinary people. Section 212 of the Constitution of Zimbabwe mandates the Zimbabwe Defence Forces to protect Zimbabwe, its people, its national security and interests and its territorial integrity and to uphold this Constitution.”[50]

83.On the next day, Chipanga the ZANU PF youth leader reading a prepared script went on television and trashed Gen Chiwenga. 

84.By the end of day, tanks were moving from Inkomo Barracks on the outskirts of Harare into the city. Mugabe was under siege. Soon afterwards, the people spilled onto the streets and celebrated. A week of negotiations followed. South Africa sent its two Cabinet ministers from the security cluster to Harare. But the general feeling amongst Zimbabweans was that South Africa, and in particular former President Mbeki, had helped Mugabe stay in office against the will of the electorate. 

85.On 21 November 2017, Mugabe finally relented and resigned as Parliament sat to impeach him.  As Dr Alex Magaisa an academic at Kent Law School put it:

“Perhaps his greatest mistake was that power got to his head so much that he forgot where it came from. It was not the people that had kept him in power in his twilight years but the might of the military. As guarantors of his authority, the military had the power to withdraw that guarantee, which is precisely what they have done. It might be said the greatest irony in all this is that it was Mugabe who benefited the most from the military when his presidency was in jeopardy, but now the monster that he created has returned to consume him. His presidency lived by the gun and now it has effectively been neutralised by the gun.”[51]

The Impeachment

86.Mugabe resigned in the face of an impeachment motion supported by his own party and the opposition. The impeachment motion under section 97(1) of the Constitution was jointly proposed by the ruling party and the MDC-T. Mugabe was to be investigated for serious misconduct; failure to obey, uphold or defend the Constitution; wilful violation of the Constitution; or inability to perform the functions of the Office because of physical or mental incapacity. 

87.Under “serious misconduct” 6 of the 8 charges concerned his wife Grace. He was accused of abrogating his constitutional mandate to his wife:

87.1       by allowing his wife to usurp government functions and access classified information; 

87.2       by allowing his wife to abuse State resources; allowing his wife to insult and humiliate VP Mnangagwa and other government officials; 

87.3      “causing disaffection amongst the Defence Forces by allowing his wife to make reckless and false allegations against the country’s Defence Forces”.

88.The other two related to condoning corruption and “harbouring fugitives Professor Jonathan Moyo and Mr. Saviour Kasukuwere from justice”. 

89.Under the “failure to obey, uphold or defend the Constitution and/or wilful violation of the Constitution”, Mugabe was accused of:

89.1       protecting misappropriation of public funds by Professor Jonathan Moyo; and 

89.2       reversing the appointment of a new Prosecutor General Ray Goba to protect Jonathan Moyo from prosecution. 

90.Under “inability to perform the functions of the Office because of physical or mental incapacity”, Mugabe’s old age was the theme. They alleged:

“Because of his old age, he is unable to represent the State with decorum and dignity expected of the Office in that he has to be hand held by either his wife or an aide to avoid tumbling or falling.” Secondly, “sleeps through deliberations in cabinet and at international meetings to the horror, shame and consternation of Zimbabwean people and all those people globally who held him in high esteem as their role model.”

91.Meanwhile, Mnangagwa waited in South Africa and returned once the coast was clear and was sworn in as the President on 24 November 2017. 

92.As he was being sworn in, it was “necessary” that a legal show be put up. Two applications were filed in the High Court in Harare and heard by the Judge President George Chiweshe, himself a retired soldier, on 24 November 2017. 

JOSEPH 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

93.The first application was filed 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 adeclaratur“to the effect that the actions of the Defence Forces of Zimbabwe…are in conformity with the Constitution, enjoy its support, and are valid.” 

94.Mugabe had resigned on 21 November 2017. 

95.The affidavit deposed to by Sibanda makes entertaining reading.  I commend it to you for bedtime reading:

95.1      “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.”[52]

95.2      “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.”[53]

95.3      “a. First Respondent has 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 First Respondent. Very curious.

b. 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 First Respondent. 

c. Grace Mugabe has used her position, as the first lady, to coerce people into demanding that she be the country’s Vice President. 

d. At a rally she chided and berated First Respondent’s spokesperson, as if he was her employee. 

e. 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. 

f. 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.”[54]

95.4      “Having been satisfied that First Respondent’s senescence had led to senility, and that he had become an instrument in the hands of those around him, Third Respondent (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 Firs Respondent, and making sure that his execution of Constitutional Functions would become possible.”[55]

95.5      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.”[56]

95.6      “Citizens have a right to protection of the law of the Constitution, and any descend (sic) into anarchy obviously affects their rights as citizens. 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.”[57]

95.7      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…[58]”

95.8      Relevant to our discussion, “necessity” of the action was emphasised. “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…”[59]

95.9      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.”[60]

95.10  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.”[61]One would assume from reading this that necessity had dissipated. 

95.11  Normalcy was also punted. “I also point out that Government business is going on normally, and everyone is happy. The court may wish to conduct an inspection on the streets of Harare.”[62]

96.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. 

97.The certificates of service confirmed service of the application at Munhumutapa House; New Government House and Defence House. There is no evidence that Mugabe was aware of this application. 

98.Dr Sekeramayi the then Minister of Defence and Gen Chiwenga both signed affidavits on 23^rdNovember 2017 stating that they were consenting to the order being sought by the applicants. No such consent was filed by or on behalf of Mugabe.

99.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.   The 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.

100.               It is important to note that section 212 of the Constitution was referred to in 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. 

101.               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.

102.               So who deployed the Defence Forces? Did they act out of state necessity? 

103.               In the light of the allegations against President Mugabe, Jeremiah Bamu has correctly, in my view, questioned whether the Judge President had jurisdiction to determine this matter. Section 167 (2)(d) states that only the Constitutional Court may “determine whether…the President has failed to fulfil a constitutional obligation.” The finding made in the order that Mugabe was guilty of the abdication of constitutional functionis one that only the Constitutional Court should exclusively make. 

104.               Alternatively, the order could not be effective unless confirmed by the Constitutional Court. Section 167 (3) provides 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.” Section 175(1) 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.” 

105.               The order in Sibandawas not made by the Constitutional Court and neither was it confirmed by it.

EMMERSON DAMBUDZO MNANGAGWA V ACTING PRESIDENT OF THE REPUBLIC OF ZIMBABWE AND ATTORNEY GENERAL OF ZIMBABWE HC 10940/2017

106.               The second application was filed by Emmerson Dambudzo Mnangagwa against the “Acting President of the Republic of Zimbabwe”and the Attorney General.  It was “for a declaratur to declare invalid a dismissal from Position of Vice President of Zimbabwe). 

107.               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. 

108.               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.  

109.               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. [63]

110.               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.[64]  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.[65]

111.               Mnangagwa further alleged that there had been numerous attempts on his life including use of cyanide, office break-ins and the poisoning incident at the Gwanda rally in August 2017.

112.               He further stated that: “Robert Gabriel Mugabe was being held captive by G40, at whose dictation he acted.”[66]He alleged G40 and Grace Mugabe on occasions he acted as President, were doing as they pleased.[67]

113.               Mnangagwa also claimed that Mugabe was incapacitated: 

“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…[68]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…[69]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.”[70]

114.               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. 

115.               He further argued that his own dismissal was not in accordance with the letter and the spirit of the Constitution and therefore void.  He also alleged the power exercised by Mugabe was for an ulterior motive and mala fide.  

116.               Again the 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.”

117.               The application was heard on an urgent basis after an ex parteapplication for the urgent hearing of the matter filed on 23 November 2017 and granted at the time the main application was heard. The order was by consent. The application was served at Munhumutapa House and New Government House. There is no evidence that the urgent application and main application came to the attention of Vice President Mphoko. 

118.               The granting of the order meant Mnangagwa could now be the acting President as he had last acted before Mugabe’s ouster. The coup had been sanitised by judicial fiat.[71]

COMPARISON BETWEEN MADZIMBAMUTO & NOVEMBER 2017 COUP

119.               As this juncture, it is important to pause and analyse the Madzimbamuto imbroglio and the November 2017 coup. 

119.1   Ian Smith and his government declared UDI and immediately abolished the 1961 Constitution and imposed a new one, which did away with British dominion over Rhodesia.

119.2   In preparation for UDI, the Smith regime had declared a state of emergency on 6 November 1965. 

119.3   The November 2017 coup did not result in a suspension of the Constitution and the imposition of a new one. 

119.4   No state of emergency was declared, although certain security warnings were issued. 

119.5   The challenge to the legality of UDI came as a harbeus corpus application by Mrs Madzimbamuto. 

119.6   The November 2017 coup plotters did not wait for an accidental legal challenge. They went to court to get themselves declaratursthat legally validated their actions. In the words of Lord Ratcliffe: Smith v East Elloe Rural District Council[72]:- “An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of illegality on its forehead. Unless the necessary procedures are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.”

120.               The Madzimbamutotrilogy reflects a deep division in terms of legal philosophy and the assessment of the exigencies of the moment. The orders in the two November 24 2017 cases were given sansreasons. Being unopposed applications, it is unsurprising that there are no reasons. We would have benefited greatly from the reasoning behind the orders. Numerous questions needed to be asked and answered. 

What was the JP to do?

121.               But let me postulate a scenario many of us would not have imagined in November 2017. Let us assume that the Judge President was confronted with the two applications under threat of serious action by the military should he not grant the orders. Would the Judge President be entitled to resign?  Two of the Rhodesian judges resigned office. It has been argued that to stay in office is a political decision. This is based on the argument that to continue in office is an apparent acknowledgment of the threat of the new regime thereby clothing it with legitimacy. In Ndhlovu Beadle CJ stated that the decision on whether to stay or resign "it is a matter of personal choice... A matter of judicial conscience ."This is the option taken by Justices Fieldsend and Young. 

122. Fieldsend acknowledged that: "it may be a vain hope that the judgment of a court will deter a usurper, or if the effect of restoring legality, but for your court to be deterred by fear of failure is merely to acquiesce in illegality."
123. Mahmoud argues that: Resigning "…signals the fidelity of the judges to the constitution under which they held office which reinforces the technically unassailable principle that a court which derives its existence from a written constitution cannot give effect to anything that is not law when judged by that constitution.  Resignations would deny the usurpers judicially pronounced the validity and legitimacy.Resignations can serve as an unmistakable signal to the body politic that the usurpers have gone beyond the law and that the pretence of preserving the legal order is just that and one to which the judiciary will not be a party."

117      Mahmud argues that these advantages however are "tempered by some contrary considerations. First, resignation of office is a heavy personal burden to be placed on the judges simply because the usurpers have indulged in extra-constitutional conduct. 

118      Second, it is doubtful that the body politic needs a drastic act like resignation of judges to alert them to the effect that the coup d'etat however extraconstitutional. The resignations may well encourage others to take political action but this effect should not obligate judges to, since encouraging political action is not part of the judicial function. 

119      Third, resignation by judges related to instability, increase "the likelihood of developing anarchical chaos" and prejudice "their peaceful tasks of protecting the fabric of society in maintaining law and order." 

120      Fourth, remaining in office will prevent the usurpers from taking the courts with sympathetic and or incompetent judges. To allow the usurpers an opportunity to appoint judges subservient to them they have two negative results: (1) any continuing check on the conduct of the regime will be eliminated; and (2) confidence of the citizens in the judicial system will erode. This was acknowledged by Fieldsend who said: "it may be that the court's mere presence exercises some check one a usurper who prefers to avoid a confrontation with it."[73]

LIBERAL DEMOCRATS & ORS V PRESIDENT OF THE REPUBLIC OF ZIMBABWE E.D. MNANGAGWA N.O. & ORS CCZ 7/18

121      On 16 July 2018, Chief Justice delivered judgment in the Liberal Democratscase.  The applicants were seeking direct access to the Constitutional Court for the determination of the constitutionality of the resignation of Robert Mugabe, the army action, the impeachment process and the assumption of office of the President Mnangagwa. In essence, they alleged that the Mugabe did not resign voluntarily. The applicants attempted to withdraw their application and were in default at the hearing of the matter in chambers. The Chief Justice held that:

121.1The question of the lawfulness of the military action of 14 and 15 November 2017 was determined by the High Court in the Sibanda case. “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.”

121.2The resignation of Mugabe was voluntary as evidenced by the letter of resignation and the communication with the Speaker on the day. 

121.3On the question whether the impeachment proceedings were at the behest of the military, the Chief Justice narrates the events at the sitting of Parliament. He makes no specific reference to the military in dismissing this allegation. 

121.4On the question whether assumption of office by President Mnangagwa was constitutional, the Chief states that it was as he assumed power replacing a Zanu PF person who had voluntarily resigned. 

122      As already argued above with regards to Sibanda, the Judge President did not have jurisdiction to determine the matter.  The Chief Justice was therefore wrong to hold that the judgment was extant. Section 167 (2)(d) states that only the Constitutional Court may “determine whether…the President has failed to fulfil a constitutional obligation.” The finding made in the order that Mugabe was guilty of the abdication of constitutional functionis one that only the Constitutional Court should exclusively make. Alternatively, the order could not be effective unless confirmed by the Constitutional Court. Section 167 (3) provides 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.” Section 175(1) 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.” 

123      The order in Sibandawas not made by the Constitutional Court and neither was it confirmed by it.

CONCLUSION

124      Tayyab Mahmud, writing in the Cornell International Law Journal, in his article "Jurisprudence of Successful Treason: Coup d'Etat & (and) Common Law[74], writes that coups in common law jurisdictions often become matters for determination by the courts of law. This is because there is need to determine whether the constitutional order has survived, and the legitimacy, and validity of the legislative power of the new usurper.

125      Where courts give invalidity to the usurper regimes they have relied on Hans Kelsen's theory of revolutionary legality. While some courts adopted Kelsen's proposition that "efficacy of a coup bestows validity in an unadulterated form, others modified this with or substituted it by doctrines of state necessity, implied mandate, and public policy."[75]

126      Mahmud suggests four possible judicial responses: 

126.1validation and legitimation of the usurpation;

126.2strict constitutionalism;

126.3resignation of office, and;

126.4 declaration of the issue to be non-justiciable political question.

127      He argues that declaring the validity and legitimacy of the regime born of the coup a nonjusticiable political question is the most appropriate judicial response because it is doctrinally consistent and principled, morally sound, politically neutral, institutionally prudent. He further argues that the legitimacy of the usurper regime is a political and moral issue to be resolved through the political processes of the society, and that the validity of a successful coup is a meta-legal question which belongs to the province of legal theory. As such, both of the legitimacy and validity of the regime born of a successful call fall outside the jurisdiction and competence of the courts. 

"Designation of these there as nonjusticiable political questions will insulate the courts from turbulent politics, deny the usurpers judicially pronounced validity in legitimacy, and facilitate the survival of the courts in the rule of law."   [76]

128      Mahmud further argues that some cases that have relied upon the doctrine of state necessity to validate and legitimise coups have used an inappropriate doctrine. Because of its extraconstitutional nature the doctrine has traditionally been circumscribed by carefully demarcated preconditions. The preconditions to the application of the doctrine are: "(a) an imperative and inevitable necessity or exceptional circumstances; (b) no other remedy to apply;(c) the measure taken must be proportionate to the necessity; and (d) it must be of a temporary character limited to the duration of the exceptional circumstances. He further argues that the doctrine may be invoked only by the lawful sovereign. The validated act must be directed to and reasonably required for ordinary daily running of the state and not to impair the rights of the citizens under the lawful constitution. As such the doctrine of state necessity cannot be used to validate a coup. 

129      To permit judges to decide such basic questions as the rightful rulers on the basis of personal preference does away with even a pretence of the rule of law. Nobody may take advantage of a necessity of his own making.[77]

TR MAFUKIDZE

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[1]LL.B (Hons) (UZ), LL.M (Wits), Registered Legal Practitioner, Notary Public & Conveyancer (Zimbabwe), Advocate of the High Court of South Africa, Member of the Johannesburg Bar, Group One Sandown Chambers, Sandton, also Door tenant at The Chambers, Harare.

[2]Glanville Williams, The Defence of Necessity, Current Legal Problems1953, 217 

[3]William Pitt,
Speech in the House of Commons, November 18, 1783 

[4]See Sachs v Donges N.O. 1950 (2) SA 265 (AD) at 276; Africa v Boothan 1958 (2) SA 459 (AD)

[5]HR Hahlo, The Privy Council and the Gentle Revolution, McGill Law Journal Vol 16, 92 at page 97.  

[6]PLD 1955 Federal Court 435 (cited in Prof S Chaturvedi’s paper: Judicial Reasoning in Revolutionary Cases in Commonwealth Countries Postmodernity, 1955-2001: An analysis of Cases

[7](1986) LRC Const. 35 (Grenada CA)

[8]As summarized by Prof Saurabh Chaturvedi, Judicial Reasoning in Revolutionary Cases in Commonwealth Countries in PostModernity,1955-2001: Analysis of Cases.

[9] [1919] AC 211 

[10]MAB Mutiti at 264

[11]MAB Mutiti at 265

[12]See an interesting paper by Justice Edwin Cameron, delivered as the High Court of Australia public lecture, 11 October 2017. http://www.hcourt.gov.au/assets/publications/speeches/lecture-series/Cameron-Judges-Justice-and-Public-Power-Oct17.pdfat page 1

[13]Prof(Dr.) Saurabh Chaturvedi

[14]MAB Mutiti 270 

[15]     Prof(Dr.) Saurabh Chaturvedi

[16]     Prof(Dr.) Saurabh Chaturvedi

[17]MAD Mutiti 277. 

[18]Madzimbamuto and Another v Lardner-burke NO and Another1966 (4) SA 462 (R) 

[19]Sir Sydney Kentridge QC, A Judge’s Duty In A Revolution—The Case of Madzimbamuto v. Lardner-Burkeat 34-35, Commonwealth Magistrates & Judges Association journal. 

[20]Kentridge QC at 35

[21]Kentridge QC at 35

[22]At page 47 of judgment. 

[23]Clare Palley, The Judicial Process: UDI and the Southern Rhodesian Judiciary , 1967 Modern Law Review (Vol 30) 263 at 278

[24]Madzimbamuto v Lardnerburke, NO and Another, NO; Baron v Ayre, NO and Others, NNO1968 (2) SA 284 (RA)

[25]Kentridge QC 38

[26]At page 351-52

[27]Kentridge QC 39 

[28]Summary by Kentridge QC

[29][1968] 3 All ER 561

[30]Kentridge QC at 40

[31]Lord Reid [1968] 3 All ER 561 at page 565

[32]Kentridge QC 40

[33](1968) 3 All ER 561 at 578

[34]At page 579

[35]1968 (2) SA 464

[36]GH Karekwaivenane, The Struggle Over State Power in Zimbabwe: Law and Politics since 1950, Cambridge University Press 2017 at page 119

[37]Supra.

[38][1968] 4 SA 515.

[39]Mahmud 54

[40]Mahmud 56

[41]Mahmud 57

[42]Mahmud 57

[43]1975 C.L.R. 558 (Cyprus)

[44]Mahmud 78

[45]1977 PLD S.Ct 657 (Pakistan).

[46]Mahmud 85-86

[47](Mahmud 93)

[48]See Alex Magaisa’s analysis of the statement in his article of 13 November 2017, “The general’s statement—possible meaning and implications.”https://www.bigsr.co.uk/single-post/2017/11/13/BSR-General-Chiwenga%E2%80%99s-statement---all-bark-and-no-bite

[49]Page 2 of Gen Chiwenga’s Statement.

[50]Page 2 of Chiwenga’s Statement of 13 November 2017. 

[51]https://www.bigsr.co.uk/single-post/2017/11/15/BSR-Special-The-end-of-an-era

[52]Para 12 of Sibanda FA

[53]Para 13 of Sibanda FA

[54]Sibanda FA para 14

[55]Sibanda FA para 18

[56]Sibanda FA, para 20

[57]Sibanda FA, para 28

[58]Sibanda FA, para 30

[59]Sibanda FA, para 33

[60]Sibanda FA, para 36

[61]Sibanda FA, para 34

[62]Sibanda FA, para 35

[63]Mnangagwa FA para 14

[64]Mnangagwa FA para 28

[65]Mnangagwa FA para 27

[66]Mnangagwa FA para 35

[67]Mnangagwa FA para 36

[68]Mnangagwa FA para 37

[69]Mnangagwa FA para 38

[70]Mnangagwa FA para 39

[71]Alex Magaisa gives a detailed analysis of this legal charade. https://www.bigsr.co.uk/single-post/2017/11/25/Big-Saturday-Read-Legal-charade-threatens-new-government

[72][1956] AC 736 at 769

[73]at 430

[74]27 Cornell International Law Journal 49 (1994)

[75]Mahmud at page 53

[76]Mahmud at 53.

[77]Mahmud 118