DURESS? SURELY NOT

A Zimbabwean case unwittingly closed the door on future judicial challenges to Robert Mugabe’s departure from the presidency

In the run-up to next week’s elections Zimbabwe’s judges have worked overtime, finalising cases related to the polls. Some were significant, like an unsuccessful attempt to allow votes to be cast outside Zimbabwe.

None, however, has been as strange as the case launched by the Liberal Democrats (Zimbabwe), its leader Vusumuzi Sibanda, and others, against the country’s president, the vice-president, the defence force, the speaker of the National Assembly and the former president, Robert Mugabe.

As Sibanda’s party wanted direct access to the Constitutional Court, rather than taking the normal route, it had to make a special application, heard by the chief justice, Luke Malaba, in chambers.

Two months ago, between lodging the papers and the hearing, one of the applicants made what Malaba described as “serious allegations of improper conduct” against court staff, claiming these officials had “colluded with state security agents” and “caused the papers relating to the case to disappear”.

Even more odd, when the matter was heard, noone arrived to represent the applicants. On the other side, only the speaker was represented by counsel. The chief justice heard that argument anyway and then reserved judgment.

In a nutshell, Sibanda’s party wanted the events of

November 2017 declared unconstitutional: Mugabe’s departure, his replacement by Emmerson Mnangagwa and the role played by the defence force. The present government should not be allowed to continue. The court should instead order the formation of a “transitional authority” to work for two years and then “lead the country into elections”.

It was Sibanda’s second attempt. Immediately after Mnangagwa took office, Sibanda tried a similar challenge in the high court focused on the role of the defence force, which failed. This time, his challenge was wider.

In his judgment delivered last week, the chief justice examined the events surrounding Mugabe’s decision to quit, before concluding that, contrary to Sibanda’s contention, Mugabe had not resigned “under duress”.

Mugabe made his intentions explicit in his letter of resignation, and its timing — while members of parliament debated his impeachment — was “proof of a deliberate decision … to end his presidency by resignation rather than suffer the disgrace of removal from office by impeachment”.

A price worth paying

Successful impeachment “visits the former president and the nation with disgrace”, observed the chief justice. However, it is a “democratic weapon” against serious misconduct, and sometimes “the personal and national disgrace resulting from the removal of a president from office” via impeachment is “a price worth paying”.

“All the evidence shows that the former president’s resignation was in conformity with the provisions of the constitution.”

Malaba criticised Sibanda and his party for their proposed remedy. Even if the court found Mugabe resigned under duress, they did not want him back; instead they wanted a transitional authority established. This was illogical: if the court found

Mugabe’s exit was unlawful, the previous situation would have had to be reinstated, said the judge. The applicants were ordered to pay costs, even though the court usually makes no such order in constitutional litigation. This was because the application was frivolous and an abuse of court process.

In addition, malicious allegations of improper conduct were made against court officials.

As a pre-election event to garner support, the case was spectacularly unsuccessful. But it had another, more significant, result: with the government changeover in November last year now given official judicial approval, Sibanda’s botched case has closed the door on any challenge to the outcome of Mugabe’s resignation.

As a preelection event to garner support, the case was spectacularly unsuccessful