Zim judges, generals and post-coup dynamics

Zim judges, generals and post-coup dynamics
Published: 20 July 2018
Soon after the toppling of former president Robert Mugabe in November last year in a coup and the ascendancy of President Emmerson Mnangagwa, High Court judge Charles Hungwe immediately ruled that the attendant military intervention was constitutional and legal.

Hungwe's controversial ruling raised immediate debate and concerns about judicial independence under the country's new administration. This was after army chiefs, led by their commander at the time, Vice-President retired General Constantino Chiwenga, deployed tanks, personnel armoured carriers and soldiers on the streets of Harare and placed Mugabe under house arrest, before he was pressured to resign after failed negotiations.

Judge President George Chiweshe had also ruled on a separate matter, saying Mnangagwa's dismissal by Mugabe was illegal.

The public, analysts and media have been asking that could have occasioned the judgement and rulings others in favour of the military action.

Researchers say this is usually expected and predictable post-coup behaviour by the courts and judges in most countries.

"Judges are important players when there is a coup. The immediate effect of a coup is to eliminate two branches of government - the executive and the legislature. The judiciary is left intact," legal authorities John Hatchard and Tunde Ogowewo ascertained in a revealing study.

In their book, Tackling Unconstitutional Overthrow of Democracies: Emerging Trends in the Commonwealth, Hatchard and Ogowewo developed what they call the "theory of implicit bargaining" in an effort to provide a key to understanding the behaviour of judges in the aftermath of a military coup in a given country. Could the rulings by different judges after Zimbabwe's coup be conforming to established post-coup behaviour?

Hatchard and Ogowewo hypothesise that in order to understand the nature of the existing jurisprudence on coups, it is important to understand what, in fact, produced it.

The major reason why the judiciary is left intact when a coup takes place is that the power usurpers require judicial declaration to gain a semblance of legitimacy, the researchers say. Thus judges are seen making a litany of rulings which basically border on what utilitarian thinker John Stuart Mill refers to as judicial moralism - a concept of absence of a distinction between morality and justice. The other reason why the judiciary remains intact is that the power usurpers would want to govern in a system which has law and order, even if it means the judicial system is tweaked.

Hatchard and Ogowewo's theory says that in the aftermath of a coup, judges enter into an implicit bargain with the power-grabbers in order to validate the regime.
This is a reciprocal deal which ensures that, in return, the regime, having sought the collaboration of judges, thereby ensuring immunity from prosecution, ensures that the judges continue enjoying the trappings of office. You naturally see them siding with the coup-plotters - if they want to continue in office, or even preserve their lives in the worst case scenario.

In both principle and application, this theory could explain the way Zimbabwean judges have been behaving of late in the aftermath of the November coup which toppled Mugabe and ushered in a new administration led by his former deputy Emmerson Mnangagwa. There have been several of interesting judgements consistent with the implicit bargain theory.

Chief Justice Luke Malaba made yet another controversial ruling on Monday. Dismissing an application by two fringe political outfits seeking nullification of the inauguration of Mnangagwa in November last year, Malaba said Mugabe's resignation was free, voluntary and very much in terms of the law.

The Liberal Democrats and Revolutionary Freedom Fighters, as well as activists Bongani Nyathi, Linda Masarira and Vusumuzi Sibanda, sought the green light to contest the legality of the Mnangagwa-led government, arguing that Mugabe tendered his resignation under duress and that the assumption of office by his successor was unconstitutional. They also argued in the court papers that the impeachment process that was instituted prior to the resignation of Mugabe was unlawful and that it served to coerce him to step down.

"The former president's written notice of resignation speaks for itself. 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," Malaba ruled.

"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."