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#5406, 11 December 2017
Zimbabwe: Political Solutions to Legal Questions Undermine the Rule of Law
Phephelaphi Dube
Director, Centre for Constitutional Rights, South Africa

The much-publicised recent events in Zimbabwe at the initiative of the army are unsettling, despite the removal of long-serving President Robert Mugabe from power. Unsettling not least because the change in governance took place outside of legal norms; but also because of implications for neighbouring states, particularly South Africa.

In terms of the Zimbabwean constitution, the first vice-president should have assumed the president’s office for 90 days, in which time the governing party elects a new leader, who then becomes president. The Zimbabwean constitution further provides that where the first vice-president is removed from office, then the second vice-president assumes the position of the first vice-president. This meant that the second vice-president, Report Phelekezela Mphoko, should have assumed the presidency, albeit in a caretaker capacity, post Mugabe’s resignation. He would have been acting president until such time that the governing party, Zimbabwe African National Union – Patriotic Front (ZANU-PF), formally elected him as party leader.

Instead, hours before Emmerson Dambudzo Mnangagwa was inaugurated, the High Court of Zimbabwe issued a declaratory order to the effect that the prior dismissal of Mnangagwa as vice-president was null and void, and of no legal effect. This order seemingly, was meant to remove any legal hurdles to Mnangagwa’s ascendency to the presidency position.

The media too, widely reported that Mugabe agreed to a deal including $10 million, immunity from prosecution, as well as assurances that together with his family, he would receive protection, as conditions for his resignation.

While the South African government responded cautiously to the developments in Zimbabwe, the immunity deal negotiated with Mugabe ignited a similar debate in South Africa, over the beleaguered President, Jacob Zuma. In 2015 the Constitutional Court found that the president failed to “uphold, defend and respect” the constitution after it was established that Zuma had used public funds to build himself a private residence. Additionally, Zuma faces the real likelihood of standing trial for corruption, fraud, money laundering and racketeering. In 2016, the Public Protector’s Office released a report into allegations of state capture, in which the president as well as his family and friends appeared to have played a central role in which key state institutions are being repurposed to unlawfully benefit a few individuals. As such, debate has emerged as to the desirability of a similar immunity arrangement for Zuma, in which he is given a certain amount of money and allowed to keep the proceeds of his corrupt activities with the assurance that he resigns from his position. 

It must be said that the South African constitution does not envisage the shielding of any individuals from the full might of the law in the event of wrongdoing. As such, any such any political solution which sees an immunity deal for Zuma would be outside of accepted legal practice. It would also create an untenable precedent going forward and would serve to undermine South Africa’s constitutional project in failing to hold powerful individuals to the same standard as demanded by the constitution.

The army as a catalyst in Zimbabwe reflects where the underlying State power lies. While there may be a semblance of a civilian president wielding power in terms of the constitution, the reality, however, is that the army is a major, if not key player in the Zimbabwean politics of the day. This does not bode well for the health of Zimbabwe’s already fragile constitutional democracy. A similar discourse about the role of the army in South African civilian affairs is ongoing – albeit within the context of the army assisting with policing in areas with high levels of violence, drugs and gangsterism. While South Africa’s president is yet to respond to the calls for the deployment of the army for civilian purposes, events in Zimbabwe have nonetheless reignited debate about the role of the army outside of warfare. 

Ultimately, despite the veneer of legality under which the leadership change occurred in Zimbabwe, the reality is that this change occurred with the army playing a centrist role, outside of any formally recognised legal structures. It is also of concern, that the High Court was seemingly complicit in the matter. For Zimbabwe, this means, going forward, that there are possibly two centres of power – one being the president and the other being the army commander. This casts a shadow over Zimbabwe’s ability to become a fully-fledged democracy, as the threat of military intervention will forever loom large. Further, the South African government may breathe a sigh of relief that its northern neighbour averted a humanitarian crisis and the possible movement of refugees across the border.

However, the developments in Zimbabwe serve to highlight South Africa’s own lack of political leadership, as well as the urgent need for swift, decisive intervention to address the corrosive effects of corruption and growing lawlessness. It is perhaps too soon to discuss geopolitical realignments within the Southern African Development Community region post the leadership change in Zimbabwe, although given the fact that ZANU-PF remains in power, this suggest little, if any such shifts.

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