and not before the coup, was not for the army but against Robert Mugabe, and, without the
guarantee of safety by the army, it is extremely doubtful that there would have been mass
demonstrations. Recent work by MPOI and RAU strongly indicates how ―risk averse‖
Zimbabwean citizens actually are.9
Lest there be any doubt that a coup took place, look at the Constitution. Section 110 gives the
responsibility only to President to deploy the defence forces. Section 113 gives power only to
the President to declare a state of emergency. Section 208 requires the security forces to act
within the constitution, be wholly non-partisan, forbids them to act in support of any political
party or cause. Section 212 requires the Defence Forces to protect Zimbabwe, its people, its
national security and interests and its territorial integrity and to uphold this Constitution. Section
213 gives only to the President the power to deploy the Defence Forces. And, finally, Section
214 requires the President to expeditiously inform parliament when he deploys the Defence
Forces.
Here it is worth a careful reading of Alex Magaisa’s last two Big Saturday Reads, and note
also the number of violations of the Constitution that still continue. The first draws attention
to the one very dangerous judgement by Justice George Chiweshe, which suggests, possibly
drawing on Section 212, that there are conditions in which the Defence Forces can determine
for themselves when they need to protect the country, etc.10 He points out that the basis for
this judgement requires the most urgent challenge. The notion in this judgement, that the
military can determine for themselves when the constitution or the state is under threat,
creates a power outside the executive, parliament and the courts. This most certainly is not
what the constitution intended, bluntly allows legal coups, and seems manifestly
unconstitutional.
Even if the judgement did attempt to draw upon Section 212 as justification for the
intervention of the army in civilian affairs, it seems unlikely that a superior court could
uphold this, as Section 212 would have to be read together with all the other Sections
indicated above. Taken all together, it is evident that the Constitution envisages the military
remaining wholly under civilian authority, only deployed by civilian, and nowhere suggests
that the military have any independent power to deploy themselves ever.
Magaisa’s second article point outs the number of other ways in which the Constitution
continues to be violated: both in the delay in the appointment of a Vice or Vice-Presidents,
and the more serious problem of the military remaining in civilian space in the absence of an
order by the President under Section 113, and/or the failure to notify Parliament under
Section 214.11
The only conclusion that can be drawn is that the government that is now in place is
illegitimate, and what will be the consequences.
Moving forward from the coup
The first, and this is what is generally being spoken about, is that this coup may be a good
thing, and the means justifies the end. The rule of Robert Mugabe has ended, and we can look
9
RAU & MPOI (2017), Risk Taking in 2017: Preliminary findings. December 2017, MPOI & RAU (in press).
Alex Magaisa, Big Saturday Read: Legal charade threatens new government. November 25th 2017.
[https://www.bigsr.co.uk/single-post/2017/11/25/Big-Saturday-Read-Legal-charade-threatens-new-government]
11
Alex Magaisa, Big Saturday Read: Government must avoid legal missteps, December 4th 2017.
[https://www.bigsr.co.uk/single-post/2017/12/04/BSR-Government-must-avoid-legal-missteps]
10