When a President fails…

THERE comes a point in any state’s existence where it must declare “never again”.

For Zimbabwe, a series of dangerous precedents that constituted an existential threat to the existence of our State over a period of several years should bring us to the point where we declare today “never again”. That series of treacherous precedents was characterised by an erosion of the integrity of the instruments of State; a tripartite conflation of personality, ruling party and Government; and an initially creeping but ultimately rapacious usurpation of constitutional order.

It is these three things, ultimately, that prompted our military to open the gates to the barracks and, with millions of Zimbabwe ans, demand a restoration of law, order, legacy and indeed common sense.

For purposes of clarity, it would be good to appreciate what a “state” is.

According to the 1933 Monte video Convention on Rights and Duties of States in 1933, which provides one of the most widely accepted definitions of the state, a state is defined by the following: having a permanent population; having a defined geographical territory; and having a government that maintains effective control over that territory while also engaging in international relations with other states.

In that sense, a state becomes clearly differentiated from a government, with a government being a group of people mandated from time to time to establish an administrative bureaucracy that is expected to further the interests of the state.

In the Zimbabwe of years gone by, all that had ceased to matter.

We allowed a situation to evolve where an individual and his close associates, particularly his wife and a few criminally-inclined hangers-on, to shred the constitution-adocument that define sand directs our statehood while conflating institutions and instruments of power and coercion to advance narrow, and economically and socially damaging interests.

Fortunately, our State is structured such that no one person or institution has monopoly over defence of the Constitution.

Upholding and defending the Constitution is not the prerogative of the Head of State alone, not even the sole right and responsibility of the Executive in its entirety. A check and balance is provided for. Section 90(1) of our Constitution says: “The President must uphold, defend, obey and respect this Constitution as the supreme law of the nation and must ensure that this Constitution and all other laws are faithfully observed.”

In this onerous task, our Constitution thought fully provides backup in the event that the President is irresponsible or for whatever reason incapable of holding up his end of the bargain.

Section 212 says: “The function of the Defence Forces is to protect Zimbabwe, its people, its national security and interests and its territorial integrity and to uphold this Constitution.”

In short, where the President fails in his sworn duties, the defence forces areconstitutionally bound to step in and up hold the supreme law. Which is what the Zimbabwe Defence Forces did in November 2017.

We have had a half-clever argument from quarters that surely are literate enough to understand the Constitution better, that the ZDF violated the Constitution because they deployed without authority from their then Commander-in-Chief.

Of course, they will not point out that the Commander-in-Chief deploys, according to Section 213(1), only“Subject to this Constitution ...”

This means the Commander-in-Chief retains such authority for as long as he himself is not in the same Constitution. This simply means one can not claim constitutional authority while at the same time presiding over conversion of that very Constitution into a piece of paper with less value than that of used tissue.

And we have specific examples of how the former Commander-in-Chief dissipated constitutional order and indeed threatened the integrity of our State, in the process failing to stand true to Section 90 of the Constitution thereby losing his authority to hide behind Section 213, thus prompting theZDFtol ive up to Section 212.

For starters, he allowed, nay, encouraged, his wife to make pronouncements in respect of persons who were due to appear before courts of law, proclaiming their innocence and directing judicial authorities to leave them alone.

What does this say about separation of powers? What does this say about constitutional order? What does this say about statal integrity? Secondly, and many may not know this, the then President had abdicated his constitutional responsibilities as regards Cabinet appointments. For those not in the know, the last Cabinet re shuffle the former President did in October 2017 was at the behest of his wife. She drew up the list of appointments and had a senior police officer assigned to her deliver it to the President’ s Office. The officer in question admitted herself to the Principal Private Secretary to the President that she had been sent with a list of Cabinet appointments.

Section 104 is clear on who makes Cabinet appointments, and it is not the First Lady. So what happens when a President falters, when he abdicates his duties? What is the responsibility of the other organs of the State? Should the ZDF be personally beholden to a President, more so one derelict in his duties, or should it uphold the Constitution? This is an ugly path that Zimbabwe has trod, and we must be clear henceforth: never again!