Law and Politics of removing Mugabe: Alex T. Magaisa

A continuing crisis

The crisis in Zimbabwe escalated this week after the military took control of the national broadcaster to announce that they had seized key functions of government. However, Zimbabwe’s “coup” is in a class of its own. Its authors have been keen to downplay it, insisting that it is not a coup. For many observers it looks like a coup, but at the same time, and rather confusingly, there are signs of the old Mugabe regime continuing its usual routines.

For example, on Thursday, Mugabe and the military general who led the operation against him just the day before were pictured side by side at State House, smiling for the cameras. The next day, Mugabe – who is the chancellor of all state universities – officiated at a university graduation ceremony, where as fate would have it, one of the graduates was that same general’s wife. She skipped the ceremony, avoiding a potentially delicate moment. The military generals probably want to maintain the façade that Mugabe’s presidency remains undisturbed, even though in reality he has lost control of key functions of the state.

Most Zimbabweans, regardless of their political orientation, have reacted positively to the military intervention, seeing it as a necessary evil to get rid of Mugabe’s 37 year old rule which has left them pauperized. There is desperation for change – any change will do, as long as it’s not Mugabe. The qualitative aspects of that change are not of immediate concern to most people. They just want Mugabe to go. Of late, their fears had become enhanced by the prospect of a Grace Mugabe presidency, which was increasingly becoming a reality. It is also speaks volumes of the state of the opposition that many people seem to have given up and surrendered themselves to the military – a bizarre phenomenon whereby those who for so long propped up Mugabe are now being hailed as saviours.

A legal gridlock

However, the operation to remove Mugabe appears to have hit a rock. After taking the bold step to seize power, the military generals have also been reluctant to go the full mile. Hence the disclaimer in the statement that they were not actually carrying out a coup. It left people wondering what it was if it wasn’t a coup. The generals said they were merely removing “criminal elements” who were around Mugabe. Few, however, bought the generals’ claim that it was not a coup. Still, people got confused when the military appeared to stall on their move. They had expected Mugabe to fall within hours after that early morning television announcement. It did not help that social media was awash with a variety of claims, as participants competed to deliver breaking news, much of which reflected the fecund imagination of its originators. The generals knew why they had to be careful, but the people were too excited to care about the niceties of the law.

The reason for the military’s reluctant approach is that they knew a coup would be illegal and would not be accepted by the community of nations, particularly in Africa. The resulting regime would not have legitimacy. Predictably, the African Union has made it clear that it would not respect any unconstitutional change of government. The regional body, SADC convened an urgent meeting and issued a cautionary statement. The disclaimer by the military was obviously intended to pre-empt these concerns. Its authors were trying to balance two competing issues: on the one hand, they engineered the military intervention because ultimately they wanted to get rid of Mugabe but on the other hand, they wanted their action to look constitutional. Their challenge was to make an illegal act appear legal.

This was complicated by one further issue: Emmerson Mnangagwa, the person they prefer to take over from Mugabe is currently not in government. Mugabe fired him a week before the coup. If Mugabe goes before he is reinstated, Mnangagwa would not be able to take over from him unless he imposes himself, which would be outside the bounds of legality, the very circumstance they want to avoid. The most ideal outcome would be to get rid of Mugabe leaving Mnangagwa in charge while giving the whole affair an appearance of constitutional compliance. How to achieve this has been the challenge for the authors of the coup. Here, I explore the options:

Forced removal

The first option is the classic coup – remove Mugabe by force – but legally it won’t work and the authors of this action know it hence their coyness. In this scenario, the military simply declares that it has seized power and the Mugabe government is dissolved. The country will effectively fall under the rule of the military junta.

However, this is the least preferable option because it would clearly be illegal and would have an irreparable legitimacy deficit. The African Union takes a hard line against military coups. We have already seen that this is why the generals were reluctant to go the full distance. It is also why the Southern African Development Community sprang into action in the immediate aftermath of the military announcement. They could not possibly stand by in the face of what appeared to be a coup against the government. To do otherwise would be to set a bad precedent in the region.

This is also why Mugabe has been digging in. He knows the constitution and the law are in his favour on this. His biggest card is that he holds the key to conferring legitimacy to the next government. If he leaves voluntarily, they get it on the cheap. But if he digs in and they use force, it will be very expensive for them.

The announcement on Wednesday morning by the military on Wednesday was a huge gamble. They probably believed it would be big enough to intimidate and isolate Mugabe and his allies, forcing him to concede. It was a gamble because if he refused to go, they would have to respond either by activating more force to complete the coup and therefore risk illegality or they would have to wait and continue persuading him. The latter would demonstrate that they lack the courage to use force and risk illegality. Knowing this, Mugabe would only dig in further. Meanwhile, the interventions of the AU and SADC have only emboldened Mugabe. He now knows his peers will back him against any use of military force. This is why the authors of action against Mugabe have so far stopped short of taking this route. It carries an obvious legitimacy deficit and no new government wants to start off on that weak footing.

Resignation from presidency

The first constitutional route would be for President Mugabe to resign. This route is provided for in section 97 of the Constitution. Under this provision, the president sends a written notice of resignation to the Speaker of Parliament who is obliged to give public notice of it as soon as possible or within 24 hours.

This would be a quick, clean and efficient way of resolving the constitutional impasse. However, it has some drawbacks: First, it is dependent on President Mugabe’s agreement to resign. If he does not want to resign, it just won’t happen. This is the route that the generals have been trying to use, but clearly Mugabe is using his power to refuse, which he is perfectly entitled to do. One option may be for the generals to make him an offer that he cannot refuse.

The second problem is that it won’t guarantee their preferred successor’s ascendancy to the presidency since he is currently not in government. Emmerson Mnangagwa, whose sacking prompted the general’s action cannot automatically take over from Mugabe because when a vacancy arises after a president vacates office, it is temporarily filled by the Vice President and at present that person is Phelekezela Mphoko. Mphoko is a non-starter for the generals since he supported Grace Mugabe ahead of Mnangagwa.

Mugabe knows that for their plan to work, the generals would want him to first reinstate Mnangagwa and make him Acting President before he resigns. Appointing him as Acting President can be done for any reason. It is not limited to occasions when he is out of the country. However, Mugabe also knows he is under no obligation to reinstate Mnangagwa. This is why he continues to dig in, not only against the resignation but also against the reinstatement of Mnangagwa. He is holding all the cards.

Third, if the plan is to work, it must also require Mphoko to resign. A Vice President can only resign by written notice to the President. If Mugabe suddenly resigns, power will remain with Mphoko for a maximum of 90 days while ZANU PF nominates a successor.

This option is complicated, which is why it has taken so long after the bold move by the generals. Mugabe is frustrating it precisely because he holds the key cards. Force will not work without risking illegality. However, the political options discussed later in this article may provide the incentives that Mugabe will need to concede this route.

Removal of President (Impeachment)

The third option is to remove Mugabe from the presidency in terms of the Constitution. This process of removing the president is conducted by parliament. This option was always available even before the military intervention. However, activating it was almost a non-starter because the faction favouring the Mugabes was in the ascendancy and it would have been impossible to mobilise enough support for it. A few years ago, a motion was proposed by an opposition MP but it never gained traction.

Under this route, which is referred to as impeachment in other countries, the president can be removed for any of the following reasons:

    a. serious misconduct;

    b. failure to obey, uphold or defend this Constitution;

    c. wilful violation of this Constitution; or

    d. inability to perform the functions of the office because of physical or mental incapacity.

It is initiated by a simple majority of the total membership of members of both the Senate and National Assembly recommending that an investigation be carried out. In this case, any one or more the above reasons can be used to justify removal. Paragraph (d.) in particular would seem the most appropriate but the others may also be invoked. Parliament sets up a nine member cross-party parliamentary committee to carry out the investigation. The president will cease to hold office if the committee’s recommendation for removal is approved by at least two thirds majority of all members of both houses of Parliament.

Since there is a general consensus between ZANU PF and the parliamentary opposition that it’s time for Mugabe to go, there is substantial scope that parliament can to remove him. This process could be fast-tracked to ensure a quick removal. It is hard to see how Mugabe would challenge it through the legal process or even if he would have the appetite to do so once it is pronounced.

There are also some challenges with this option: First, if this is what the authors of the coup want, it won’t guarantee Mnangagwa’s immediate succession since he is currently not in government. The same reasons stated in the resignation option apply here. Instead, the current Vice President Phelekezela Mphoko will assume power for up to 90 days during which the ruling party must nominate a replacement to complete the remainder of the term (s. 14(4)(a) of the Sixth Schedule to the Constitution). For reasons stated in the resignation option, this would require Mugabe to reinstate Mnangagwa first, which is unlikely to happen if he is going to be removed in this manner.

They could however throw caution to the wind and proceed with removal and deal with the aftermath after ensuring that Mugabe is out of the picture. The party could immediately nominate a successor soon after the removal. The national constitution requires the ruling party to simply nominate a candidate to fill the presidential vacancy but crucially, it does not actually prescribe how this is done. This means ZANU PF has the liberty to choose any method that works for it at any given time. For example, ZANU PF’s Provincial Coordinating Committees could simply issue resolutions to the effect that they want Mnangagwa to be the successor. This can be achieved within days, if not hours. It could even be organised in advance. Mphoko would only be Acting President for hours, if not minutes after Mugabe’s removal by parliament.

Withdrawing authority to govern

The next and perhaps most important option centers on the people of Zimbabwe. As explained below, politically and constitutionally, they are the source of authority to govern. They have the power to demand their authority back. However, it is important to anticipate the argument that Mugabe will make before I explain the legal basis of the political action to demand a return of the authority to govern. The end-game of this political pressure from the people is to secure one of the options above: resignation.

In citing the issue of legality, President Mugabe is likely to rely on the constitutional principle of “the orderly transfer of power following elections” which is captured in s. 3(2)(c.) of the Constitution. He will argue that he is the duly elected leader of the republic and that he is entitled to serve until the expiry of his term of office next year. He will argue that this will be the only time when there can be a transfer of power. In advancing this argument, Mugabe will rely on the support of his peers in SADC and the AU, the regional and continental bodies respectively.

There’s some irony in the history of this principle of “the orderly transfer of power following elections” which must serve as a reminder to ZANU PF politicians that they must never again be as short-sighted as they were during the constitution-writing process. It was the opposition parties that proposed the inclusion of the principle of “transfer of power”. This was a political statement in light of what had happened in 2008, when ZANU PF and its allies had stood in the way of transfer of power. ZANU PF representatives were not comfortable with it and insisted on adding the words “orderly” and “following elections” as qualifications to the principle. They thought we had included the principle in order to justify mass uprisings demanding the transfer of power from the government. They had seen the Arab Spring, which had resulted in the removal through mass uprisings of entrenched dictatorships in North Africa and they thought this is what we were trying to justify the same in Zimbabwe. In response, they insisted that transfer or power had to be “orderly” and “follow elections”, which limited the principle. They must now rue their decision to oppose and dilute the principle with their qualifications. It is the principal argument that Mugabe is now using to justify that there can be no transfer of power outside elections.

Nevertheless, there is another principle which runs throughout the constitution. It is that there must be “respect for the people of Zimbabwe, from whom authority to govern is derived” (s. 3(2)(f) of the Constitution). The principle is repeated in the case of the executive. Section 88 clearly states that “Executive authority derives from the people of Zimbabwe …” Likewise, it is stated in respect of the legislature with section 117(1) providing that “the legislative authority of Zimbabwe is derived from the people …” In the case of the judiciary, section 162 states that “judicial authority derives from the people of Zimbabwe …” Thus the idea that people are the source of authority to govern is well established in our constitution.

It means those who govern – executive, judiciary and legislature – derive their power from the people. In other words, there is a relationship of agency between the people and their leaders. The people are the principals and the leaders are their agents. Leaders can only exercise their authority as conferred by the people. The implication of this is that should the people choose to do so, they can withdraw that authority. Elections are one way in which the people can confer or withdraw their authority. But the election is only one of multiple routes. The election comes once every 5 years. If people discover that their authority is being abused during the course of that term, they have the right to demand its withdrawal. The people have fundamental rights of freedoms to express their displeasure in any of the agents in whom they have conferred authority. These include the freedoms of expression, assembly and association and the freedom to demonstrate and present petitions. The key qualification is that these rights must be exercised peacefully and with due regard to the rights of other people.

It is in this context that the people can lawfully and legitimately demand the withdrawal of their authority to govern from their leaders. It is part of their right to freely associate and assemble for purposes of expressing themselves and in order to demonstrate and petition their leader. They are perfectly entitled to express their displeasure with their leader, including the right to demand that he steps down. This includes civil disobedience. There is, therefore, every justification for people, from whom authority to govern is derived to demand it from those who are abusing it.

This point must be understood by Zimbabwe’s friends in SADC and the AU. They must understand that when Zimbabweans demand their authority back through any political action, it will be perfectly lawful exercise of their rights as enshrined in the national constitution. It does not in any way constitute unlawful change of government. The framers of the constitution knew what they were doing when they stated in clear terms that authority to govern is derived from the people. They meant that should they wish to withdraw that authority, they would be perfectly entitled to do so.

Removing the pillars

The strategy is to take away the pillars and erode political legitimacy. It is now becoming increasingly clear to everyone that the so-called popular support Mugabe enjoyed over the years was no more than a façade. Less than 7 days ago, people in his party were cheering him and declaring that he would be their candidate in next year’s elections – at 94. Today, the same people were issuing resolutions recalling him from the ZANU PF leadership.

Of course, the recall process has no legal effect on his position as national president. But that is not its intended purpose. Its real effect is to erode his political legitimacy. He has already lost the war veterans. He lost the military. He is losing the youths and women’s leagues in his party. The military intervention neutralised the G40 faction which was vocal in its support of his presidency. All the legs upon which his presidential chair used to stand are being taken away. By the end of the weekend, Mugabe could be sitting on the floor. He could be politically isolated. At some point, those holding de facto power may tell him that they can no longer guarantee his security, which would leave him even more vulnerable. Ironically, this is the same method that he used when he wanted to fire former Chief Justice Anthony Gubbay in 2001. His government simply told the judge that they could no longer guarantee his security. This forced him into early retirement.

Given this real possibility, it would be prudent for Mugabe to cut a deal while he still has some bargaining power in order to protect not only him and his family but also his beleaguered allies who face an uncertain future. There is no more capital in the bank of politics. The sooner he realises this the better. Every day that passes means the chance of walking away with some modicum of dignity is lost and the chances of a miserable end become more real.

Conclusion

There are a number of options. The use of military force would lead to a severe legitimacy deficit which will be a burden on any future administration. Removal through resignation would be cleaner but Mugabe holds the cards. He can choose to dig in as he is doing. Removal through the parliamentary process might work, but it is unpredictable and like resignation, it is also dependent on him because it requires Mugabe to reinstate the man whose firing prompted the military intervention. This leaves political action designed to isolate and erode his political legitimacy as the most viable means.

The people must be ready to fill the gap should political action result in the withdrawal of authority to govern from Mugabe. It might take days or weeks but eventually the pressure will be too much to bear. Never before has there been such a cross-party convergence of diverse forces, all with different agendas, for purposes of removing one man. The guiding force here is not principle but pragmatism. The motivation is to get rid of Mugabe. Some will argue that it is short-sighted but this overlooks the sense of frustration people have endured over the years. The international community appears to be going along with events. In any event, many Western countries have waited for a long time to see the back of Mugabe. Even the Chinese, long-time allies eventually got tired of the man.

As for SADC and the AU, they will obviously not countenance a military takeover, but they can do nothing to stop the people from demanding a return of their authority to govern in accordance with their constitution. There is nothing illegal about it. If anything, it is a perfectly legitimate expression of democratic will. For their part, civil society in the SADC region can do well to show solidarity with their counterparts in Zimbabwe, reminding their governments that Zimbabweans have every right to determine their own destiny within the realms of the law.

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Source: Alex T. Magaisa

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