Justice Malaba’s ruling must silence naysayers

THE court case challenging the validity of the resignation of former President Mr Robert Mugabe on November 21 last year and his replacement by President Emmerson Mnangagwa three days later was clearly a waste of time. The applicants Bongani Nyathi, Linda Masarira and Vusumuzi Sibanda and the Liberal Democrats and Revolutionary Freedom Fighters

are clearly people with much time and money in their hands to waste hence their decision to seek the greenlight of the court to contest the legality of Mr Mugabe’s resignation and that of President Mnangagwa’s Government.

They were arguing that Mr Mugabe tendered the resignation under duress and that the assumption of office by President Mnangagwa was unconstitutional. The applicants were also saying that the Parliamentary impeachment process that was instituted against Mr Mugabe was unlawful and that it served to coerce him to step down.

Chief Justice Luke Malaba, sitting in his Chambers, had the easiest of tasks in dismissing as frivolous and vexatious the arguments, saying that Mr Mugabe’s resignation was voluntary and that President Mnangagwa’s administration is legitimate.

Ms Masarira may have missed the reading of Mr Mugabe’s resignation in Parliament by the Speaker, Advocate Jacob Mudenda, on that unforgettable afternoon, which reading sent the country into delirium.

“I, Robert Gabriel Mugabe, in terms of Section 96, Sub-Section 1 of the Constitution of Zimbabwe, hereby formally tender my resignation as the President of the Republic of Zimbabwe with immediate effect. My decision to resign is voluntary on my part and arises from my concern for the welfare of the people of Zimbabwe and my desire to ensure a smooth, peaceful and non-violent transfer of power that underpins national security, peace and stability. Kindly give public notice of my resignation as soon as possible as required by Section 96, SubSection 1 of the Constitution of Zimbabwe,” the former President wrote.

This letter speaks for itself and Chief Justice Luke Malaba ruled just as much.

“The former President’s written notice of resignation speaks for itself,” he said.

“It sets the context in which it was written. He candidly reveals the fact that he had communicated with the Speaker of Parliament at 1353 hours. In the communication, the former President expressed to the Speaker his desire to resign from the office of President.

“The Speaker must have advised him that for the resignation to have the legal effect of bringing his presidency to an end, it had to be communicated to him by means of a written notice.

“A written notice of resignation addressed to the Speaker and signed by the President, on the face of it, meets the first requirement of constitutional validity.”

As a result of Mr Mugabe’s voluntary resignation, a vacancy arose in the office of State President. In terms of the law, the political party that had sponsored his election, in this case Zanu-PF, appointed his successor.

“The Speaker was notified in time and the inauguration was lawfully done within the prescribed timeframes. The first respondent (President Mnangagwa) took the oath of office within the requisite 48 hours after the Speaker was notified of his name. As a result of strict compliance with all the procedural and substantive requirements of a constitutionally valid assumption of the office of President left vacant by reason of resignation in terms of Section 96(1) of the Constitution, the first respondent assumed office as President,” ruled Chief Justice Malaba.

It is needless to point out that we had no doubt in our minds whatsoever that Mr Mugabe left office voluntarily and that his successor assumed office in terms of the constitution. Mr Mugabe did so after considering that Parliament was going to impeach him anyway and that he had lost control of his party. Also and in terms of the party and national constitutions, President Mnangagwa was nominated by his party to take over the presidency.

Ms Masarira knew from the outset that she and her colleagues’ case was doomed but being clowns that they are, they approached the courts seeking an impossible order.

Anyone in charge of their mind cannot suggest that Mr Mugabe was forced to leave office. At every step of the way, the military accorded him all the respect due to their commander-in-chief and State President. They gave him his salute and provided him his Presidential security. He actually performed the functions he could do in the circumstances prevailing at that time although he had lost control of his sponsoring party which could not be prevented by any law or authority from taking the decisions that it did to withdraw their backing of him. Facing the ignominy of impeachment, he tendered his resignation.

Some of Ms Masarira and her colleagues’ arguments are laughable. They said the impeachment process was invalid and unlawful because it was meant to coerce Mr Mugabe to step down. How on earth can an impeachment process be meant to achieve the opposite; to convince someone to remain in office? An impeachment process anywhere under the sun seeks to force someone to leave office, often one who is attempting to resist. Therefore the November 21, 2017, impeachment motion and debate was designed to constitutionally force Mr Mugabe to leave office and there is nothing illegal about it.

It is to be recollected that Chief Justice Malaba’s ruling came some six months after Judge President, George Chiweshe, had ruled on November 24 last year that the intervention by the military was above board. There was therefore no chance that this latest attempt would succeed.

We hail the court’s decision. It must silence the minority which has been making empty noises over the same issues particularly now as we approach the July 30 elections.