Zimbabwe has been skirting a constitutional crisis since November 2017, and, despite the optimism of the international and regional community, in our view the government has finally plunged the country into a full-blown constitutional crisis in their heavy-handed reaction to the protests and stay away precipitated by the profound economic grievances of the citizens.
This constitutional crisis is rooted in the unlawful deployment of the military under an undeclared state of emergency, the use of excessive force by both the military and police, and the illegal closure of the internet.
Since 14 January 2019, the accelerating crisis in the country has created a lawless state inconsistent with human rights and dignity. The economic and fuel crisis precipitated protests from many sectors which resulted in an unprecedented reaction from all branches of state security, leading to a scale of shootings, beatings, abductions and abuse of the justice system not seen in Zimbabwe since the 1980’s. The paralysis of commerce and industry compounds the crisis for citizens. The state ordered closure of the internet and social media was a final assault on the fundamental rights of citizens guaranteed in the Constitution. The developing humanitarian crisis is indisputable,as is the descent of Zimbabwe into a lawless state.
The procedures for declaring states of emergency and deployment of the military are clearly laid down in the Constitution, and there is no evidence that Sections 100 (Acting President), 113 (States of public emergency), 213 (Deployment of Defence Forces) and 214 (Political accountability for deployment of Defence Forces) have been complied with in the manner required by the Constitution. Additionally, the available evidence suggests that the management of the stay away is wholly contradictory to Section 206 (National Security) with the absolute disdain for the fundamental rights and freedoms and the democratic values and principles enshrined in this Constitution… and the rule of law.
The lawlessness of the Government is compounded by the credible evidence that the violence, that has been both systematic and widespread, with enormous number sof citizens tortured, conforms to the definition of crimes against humanity. This allegation has already been raised locally and internationally.
Thus, the failure by the Government to ensure that there is complete adherence to the Constitution has precipitated a crisis of government that raises critical questions that both the regional and international community, who have a duty to protect need to address urgently.
In the absence of strict adherence to the Constitution, our country has been reduced to lawlessness, where the rule of law has been wholly overturned by the State. There is only one way forward. This is an inclusive national dialogue towards a National Transitional Authority, which is what churches and civil society have been calling for. This dialogue must involve all national stakeholders, including direct citizen participation, in which all the challenges can be addressed comprehensively to collective satisfaction.
Relevant Constitutional Clauses on Powers of an Acting President, States of Emergency and Deployment of the Defence Forces
100 Acting President
(1) Whenever the President is absent from Zimbabwe or is unable to exercise his or her official functions through illness or any other cause, those functions must be assumed and exercised—
(a) by the first Vice-President;
(2) Except in accordance with a resolution passed by a majority of the total membership of the Cabinet, a person exercising the functions of the office of President in terms of subsection (1) must not exercise the power of the President—
(a) to deploy the Defence Forces;
113 States of public emergency
(1) The President may by proclamation in the Gazette declare that a state of public emergency exists in the whole or any part of Zimbabwe.
(7) The Constitutional Court, on the application of any interested person, may determine the validity of—
(a) a declaration of a state of public emergency;
(b) any extension of a declaration of a state of public emergency.
(8) Any court may determine the validity of any legislation enacted, or other action taken, in consequence of a declaration of a state of public emergency.
206 National security
(1) The national security objectives of Zimbabwe must reflect the resolve of Zimbabweans to live as equals in liberty, peace and harmony, free from fear, and in prosperity.
(2) The national security of Zimbabwe must be secured in compliance with this Constitution and the law.
(3) In particular, the protection of national security must be pursued with the utmost respect for—
(a) the fundamental rights and freedoms and the democratic values and principles enshrined in this Constitution; and
(b) the rule of law.
213 Deployment of Defence Forces
(1) Subject to this Constitution, only the President, as Commander-in-Chief of the Defence Forces, has power—
(a) to authorise the deployment of the Defence Forces; or
(b) has power to determine the operational use of the Defence Forces.
(2) With the authority of the President, the Defence Forces may be deployed in Zimbabwe—
(a) in defence of Zimbabwe;
(b) in support of the Police Service in the maintenance of public order; or
214 Political accountability for deployment of Defence Forces
When the Defence Forces are deployed—
(a) in Zimbabwe to assist in the maintenance of public order; or
(b) outside Zimbabwe;
the President must cause Parliament to be informed, promptly and in appropriate detail, of the reasons for their deployment and—
(i) where they are deployed in Zimbabwe, the place where they are deployed;
Source: Mandaza & Reeler are Co-Convenors of the Platform for Concerned Citizens (PCC)