The legality and legitimacy of Zimbabwe’s Military Intervention
according to International law and discussion.
By Arthur Ernest Gwagwa, Strathmore Law School.
On 12 November 2017, the Zimbabwe Defence Forces intervened in
Zimbabwe’s power struggle to ‘restore constitutional order’. This and other
subsequent interventions, such as the solidarity march, ZANU PF Central
Committee’s decision to recall Robert Mugabe and the parliamentary aborted
impeachment proceedings led to the resignation of President Mugabe as
Zimbabwe’s President. On 20 November 2017, an application was brought
before the High Court of Zimbabwe to test the constitutionality of the
Zimbabwe Defence Forces. The court ordered that the actions of the Defence
Forces of Zimbabwe, in intervening to stop the take-over of First Respondent’s
(President Mugabe) constitutional functions by those around him, are
constitutionally permissible and lawful in terms of Section 212 of the
Constitution of Zimbabwe. The material facts upon which the applicants
relied are on file. This article sets out, verbatim, the argument we raised on
applicants’ behalf. Applicants’ main argument runs from page 5-25. In order
to guide this court, especially due to the importance of this matter and given
its novelty and a lack of relevant case law, from pp 1-5, we set out historical
and contemporary thinking and approaches on military-led interventions
according to international law and discussion and as well as common law
jurisprudence.
Applicants’ argument
Although the applicants argue that the Zimbabwe military intervention was
not a coup but military intervention to restore constitutional order following
a civilian coup,1applicants nevertheless rely on coup and revolutionary
legality jurisprudence since the military-lead revolutions are jurisprudentially
classified under coup-like situations. For the purposes of these heads, the
applicants shall use terms such as military intervention, revolution,
temporary take over, coup-like situation although the explicit mention of the
term coup is unavoidable due to the limited nature of the case law.
1. This matter came before this honourable court on 20 November 2017
and the court ordered that the actions of the Defence Forces of
Zimbabwe, in intervening to stop the take-over of First Respondent’s
constitutional functions by those around him, are constitutionally
permissible and lawful in terms of Section 212 of the Constitution of
Paragraph
1
1
, Appli a t’s affida it
2.
3.
4.
5.
6.
2
Zimbabwe. The material facts upon which the applicants relied are on
file.
The applicants are now requesting the court to render a full judgment
explaining its reasoning in arriving at its order. Given the national
importance and novelty of this case, a full judgment is necessary. In
light of the above, the applicants are filing these heads of argument to
assist the court in formulating its judgement which takes due regard of
the legal, socio-political and other considerations that it ought to take
into account in determining the legality and legitimacy of military-lead
revolutions or coup-like situations.
The novel nature of this case means that exclusive reliance on legal
sources would not yield the required body of knowledge to guide the
court since political transitions by their very nature raise extra-legal
questions, therefore some of the arguments are rooted in social and
political science, and constitutional theory. This is a departure from the
Hans Kelsen's theory of revolutionary legality based on pure legal
theory.
Judicial responses to the questions raised after coups and other
interventions in post-colonial settings have often relied upon Hans
Kelsen's theory of revolutionary legality to validate coups d’états. The
case of State v. Dosso (1958 PLD Sc.) solely based on Kelsen’s theorythe Supreme Court of Pakistan relied on Hans Kelsen’s doctrine of
efficacy in accepting legitimacy of the first ever coup d’état in Pakistan’s
history.
Hans Kelsen suggested that in a situation of coup d’état (and by
necessary implication, military-led interventions in the case of
Zimbabwe), the decisive factor is to see whether “the old legal order
ceases, and the new order begins to be efficacious.”2 If the new order
replaces the older one, in the sense that the people “actually behave, by
and large, in conformity with the new order,” Kelsen thinks, “then this
[new] order is considered as a valid order.” The sole emphasis on “the
legal order factor” alone misses other factors, including the ethical,
political and historical justification for the coup (including militaryled interventions). This purely legal order based determination of
legitimacy is, of course, the characteristic feature of Kelsenian
jurisprudence [Uddin, Ml, Distinguishing legality and legitimacy of
coup D’Etat: Looking beyond Kelsen, International Journal of Law
and Legal Jurisprudence Studies Volume 3 Issue 4].
In the main argument, the applicants in this case will dissuade this
court from solely relying on but go beyond Kelsen’s principle of
For the overall Kelsenian approach, see HANS KELSEN, GENERAL THEORY OF LAW AND STATE (New York,
Russel and Russel, 1961).
2
efficacy.3 The system of legitimacy based on a single factor test of
efficacy, without considering all relevant socio-politico-legal factors, is
extremely limiting. They will therefore request the courts to take an
interdisciplinary approach that considers all the variables of legitimacy
such as legal, political, social, historical and moral factors which must
all be weighed in.
7. Some legal theorists have taken this departure from the legal approach
to the extremes, for instance, Mahmud, T. writes on the proposal that
declaring the validity and legitimacy of a regime born of a coup d'etat a
nonjusticiable political question is the most appropriate judicial
response because it is doctrinally consistent and principled, morally
sound, politically neutral, and institutionally prudent. He further
argues that the legitimacy of a usurper regime is a political and moral
issue to be resolved through the political processes of a society, and
that the validity of a successful coup d'etat is a meta-legal question
which belongs to the province of legal theory. As such, both the
legitimacy and validity of a regime born of a successful coup d'etat fall
outside the jurisdiction and competence of the courts. Designation of
these as nonjusticiable political questions will insulate the courts from
turbulent politics, deny the usurpers judicially pronounced validity and
legitimacy, and facilitate the survival of the courts and the rule
([Mahmud, T. Jurisprudence of Successful Treason: Coup
d’Etat&(and) Common Law. Cornell International Law Journal,
Volume 27 Issue 1 Winter 1994].
8. By asking this honourable court to render a full judicial
pronouncement, the applicants are obviously rejecting the Mahmud T
approach but are persuading this court to follow the middle path by
rendering a decision that addresses not only legal and constitutional
questions but social and political too. A pragmatic coupling of the
concepts of legality and legitimacy, appreciating what they share and
how they differ, would enable this court to devise a coherent set of
principles applicable in such cases. Noerdlinger, in particular, thinks
that legitimacy of a pre-coup civil government is critically important in
determining the legitimacy/illegitimacy of a post-coup military
regime.4In the following paragraphs, the applicants will demonstrate
3
The case of State v. Dosso (1958 PLD Sc.) of Pakistan was the first reported coup case, where the Supreme Court of Pakistan relied on
Ha s Kelse ’s do tri e of effi a i a epti g legiti a of the first e er oup d’état i Pakista ’s histor . For the o erall Kelsenian
approach, see HANS KELSEN, GENERAL THEORY OF LAW AND STATE (New York, Russel and Russel, 1961). Hans Kelsen suggested that in a
situatio of oup d’état, the de isi e fa tor is to see hether the old legal order eases, a d the e order egi s to e effi a ious. 7 If
the e order repla es the older o e, i the se se that the people a tuall eha e, a d large, i
o for it ith the e order, Kelse thi ks, the this [ e ] order is o sidered as a alid order. The sole e phasis o the legal
order fa tor alone misses other factors, including the ethical, political and historical justification for the coup. This purely legal order
based determination of legitimacy is, of course, the characteristic feature of Kelsenian jurisprudence.
4
PAUL BROOKER, NON-DEMOCRATIC REGIMES: THEORY, GOVERNMENT AND POLITICS (2000).
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the ways in which the Mugabe-led government failed on both legality
and legitimacy accounts.
9. Due to the public interest nature of this matter, the applicants also
address issues that have been raised in public discussions, in
particular, whether the third respondent’s action amounted to a coup,
a revolution or simply a public-supported military-led transfer of power.
The applicants respectfully request this honourable court to base its
decision on the issues of law, constitutional theory and socio-political
factors stated below.
10.
Also in a number of the decisions the courts have taken the view
that determining revolutionary legality is an issue to be determined by
reference to principles of domestic rather than of international law,5
nevertheless, in the evolution of this area of the law, each court has
borrowed from and has quite evidently been persuaded by the decisions
in other jurisdictions. In addition, in formulating tests for revolutionary
legality, this honourable court should be cognisant of the fact that case
law is reflective of a paradigm shift from an emphasis on the imperative
of state autonomy to a growing concern for recognition of human rights
norms.
11.
In terms of case law, the common law cases can provide
necessary guidance. These include the Dosso Case of Pakistan 1958,
the Matovu Case of Uganda 1966, the Madzimbamuto Case of Southern
Rhodesia 1968, the Valabhaji Case of Seychelles 1981, the Mitchell Case
of Grenada 1986, the Mokotso case of Lesotho 1988, and the Matanzima
Case of Transkei 1988.
12.
However, these deal with what we would call hard coup d’etats
and those situations where the usurpers/interventionists are motivated
by nothing other than power. Second, most of this literature, like the
courts in common law jurisdictions, fails to make a distinction between
the validity and the legitimacy of military interventions and coup
d’etats- a distinction that is pivotal in formulating an appropriate
judicial response to successful revolutions, military interventions and
coups [Mahmud, T. Jurisprudence of Successful Treason: Coup
d’Etat&(and) Common Law. Cornell International Law Journal,
Volume 27 Issue 1Winter 1994].
13.
The case of Madzimbamuto v Lardner-Burke [1969] 1 AC 645
(hereinafter referred to as the Madzimbamuto case) decided in Rhodesia
is the only closest domestic case to the current one. However, it is
distinguishable as it mostly dealt more with the doctrine of necessity
rather than that of the legality and legitimacy of the UDI and resultant
government. However, the courts have made it clear that recognition of
5
See, for example, Attorney-General of the Republic v Ibrahim (1964) Cyprus LR 195 at 231: Madzimbamuto v Lardner-Burke 1968 (2) SA
284, at 377; Mitchell v DPP [1986] LRC (Const) 35 at 71; Makenete v Lekhanya [1993] 3 LRC 13 at 48.
4
the validity of laws under the doctrine of necessity is not the same thing
as recognising the legitimacy or legality of the new regime itself- an
issue which these heads will also address. In Madzimbamuto, both
Lewis and Goldin JJ held that the 1965 constitution and the Smith
government were not lawful, but that the doctrine of necessity required
that effect should be given to emergency power regulations that had
been passed by that government and which had authorised the
detention of the appellant’s husband.
APPLICANT’S HEADS OF ARGUMENT
The issues
In general, this court is called upon to decide on the legality and legitimacy
of the military intervention and by necessary implication, the legality and
legitimacy of the pre-intervention government, and the legality and
legitimacy of the post-intervention government. Specifically, the court is
invited to decide on the following issues:
1. Issues relating to the legality and legitimacy of the pre-take over
government.
A. Was the first respondent (the “President”) incapable of exercising his
executive functions under section 88 of the Constitution of Zimbabwe
during the period leading to the military intervention?
B. If question (1) is answered in the affirmative, did his failure to uphold
the Constitution amount to a gross violation of the Constitution
and/or an abdication?
C. If question (2) is answered in the affirmative, did such an abdication
amount to a threat to Zimbabwe’s agency as a sovereign state and its
place in relation to other states? Specifically, did the abdication
threaten Zimbabwe’s national security, domestic and international
interests?
Issues relating to the legality and legitimacy of the takeover process
and resultant government.
D. If question (3) is answered in the affirmative, was the Zimbabwe
Defense forces intervention legal and for the avoidance of doubt, was
the military intervention a coup?
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E. Is the new government both legal and legitimate?
General Submissions
1. Applicant submits that the intervention by the Zimbabwe Defence
Forces (the “military intervention”) on 18 November 2017 was not a
coup but a military intervention recognised under “revolutionary
legality” and in compliance with the constitution and/or meant to
safeguard it.
2. By necessary implication, applicants submit that the civilian and
other individuals who constituted and ran the government before the
military takeover did so illegally and illegitimately.
3. The applicants finally submit that the government installed after the
military intervention is legal and legitimate.
Detailed Submissions
Issues relating to the legality and legitimacy of the pre-take over
government: Was the President unable to exercise his executive
functions under section 88 of the constitution of Zimbabwe?
Legality of the Mugabe-led government
1. The Applicants submit that the government that existed before the
military takeover failed to meet both the legality and legitimacy tests.
In deciding whether the Mugabe-led government failed to meet these
two tests, the applicants argue that this court should strike, rather
than conflate, a balance between the strict formalism of legality and
the practical realism of legitimacy. In so doing, the court needs to take
into account constitutionalism but without ignoring the reality of the
situation that prevailed in Zimbabwe before and during the takeover
[See Uddin, Ml].
2. Applicants submit that the President was unable to reasonably
exercise his executive functions under section 88 of the Constitution
of Zimbabwe from the 2014 Congress until 14 November when the
third respondent issued a statement that led to the military
intervention on 18 November 2017. The specific grounds of such
failure are set out in the affidavits, specifically from paragraphs 10-19.
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3. As a constitutional democracy, Zimbabwe’s system of government is
based on popular sovereignty in which the structures, powers, and
limits of government are set forth in a Constitution. The current
constitution of Zimbabwe, unlike the 1979 one is not only the
supreme law of Zimbabwe but legitimate given the process through
which it came about. After a protracted internal political crisis during
which Zimbabwe’s agency as a sovereign state was questioned and
came under severe multiple threats, Zimbabwe’s political principals
under the then government of national unity (“GNU”) undertook a
public consultation that gave rise to a new constitution which was
gazetted as a law on 22nd May 2013 and became effective on 22nd
August 2013. In section 88, the 2013 Constitution, among other
issues, spells out the source, functions and exercise of the
government’s executive authority as follows:
“88. Executive Authority6
(1) Executive authority derives from the people of Zimbabwe and must
be exercised in accordance with this Constitution.
(2) The executive authority of Zimbabwe vests in the President who
exercises it, subject to this Constitution, through the Cabinet.”
4. It is Applicant’s contention that the President failed to carry out his
core constitutional functions through the cabinet but allowing, either
intentionally or unintentionally, the G40 faction and the first lady to
do so, including to announce and justify government core decisions.
Applicant submits that this amounted to a gross violation of his
constitutional relationship with the people of Zimbabwe.
5. Further, such failure vitiated the social compact that undergirds the
constitutional relationship and his commitment to serve the people of
Zimbabwe when he swore the presidential oath on assumption of
office.
6
The executive is the organ exercising authority in and holding responsibility for the governance of a state.
The executive executes and enforces law. ... Members of the executive, called ministers, are also members of the
legislature, and hence play an important part in both the writing and enforcing of law. In the case of South Africa, please
follow this link: https://www.gov.za/about-government/government-system/executive-authority-president-cabinet-anddeputy-ministers
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6. In all circumstances, the practical effect of his combined ultra vires
acts amounted to abdication and/or voluntary surrender of his
authority. The chaos that was created by his abdication is reminiscent
of King Lear’s abdication of his purpose and his responsibilities to his
daughters Goneril, Regan, and Cordelia thus creating chaos but
continued to believe that he was still king.
7. Although the President’s functions and duties are not strictly based
on employment law or contract, nevertheless, his executive authority
is based on a relationship akin to an employment contract. First, he is
elected into office through a universal suffrage on the strength of his
promise to the people both to deliver on his manifesto but more
importantly to uphold the constitution when he is sworn in. Second,
although his termination is done under the constitution, the basis of
termination such as ‘gross violation’ has strong parallels to the
concept of gross misconduct as a ground for summary dismissal in
employment law. Therefore, case law and jurisprudence on gross
misconduct may provide necessary guidance. In employment law, an
act of gross misconduct is considered to be serious enough to
overturn the contract between employer and employee, so justifying
summary dismissal.
Legitimacy of the Mugabe-led government
8. The applicants submit that the President had lost legitimacy which is
crucially important for all types of regimes, from naked tyranny to
pluralist ones, more so for those instituted extra-legally. For example,
Max Weber mentioned that willingness of the subjects to submit to an
order emanates from their belief in the legitimacy of the government
while Noerdlinger, in particular, thinks that legitimacy of a pre-coup
civil government is critically important in determining the
legitimacy/illegitimacy of a post-coup military regime. That said, the
meaning of legitimacy for a political/social scientist is not identical to
the notion of legitimacy for legal scientists, like Kelsen and Schmitt.
Different political and social thinkers suggest different definitions and
criteria for ascertaining the legitimacy of an extra legal regime. The
insights from their discussions and debates have potential to
illuminate judges in devising a coherent set of principles in deciding
coup-related cases [Uddin, Ml, Distinguishing legality and
legitimacy of coup D’Etat: Looking beyond Kelsen, International
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Journal of Law and Legal Jurisprudence Studies Volume 3 Issue
4].
9. In the same vein the president’s persistent abdication of his core
duties and functions could be deemed to amount to a vitiation of his
social compact with the people of Zimbabwe. Under the social compact
or contract he is accountable to the people in the discharge of his
mandate. The social compact theory is rooted in political science. It is
important to discuss this concept to the extent that the 18 November
2017 solidarity march was people’s demonstration that such a
compact could no longer hold. Hobbes, Locke and Rousseau define a
social compact as the voluntary agreement among individuals by
which organized society is brought into being and invested with the
right to secure mutual protection and welfare or to regulate the
relations among its members. The social compact and the constitution
have an inalienable relationship especially in a constitutional
democracy like Zimbabwe. A social contract is also a constitution of
nature that precedes both the constitution of society and the
constitution of government. It is also convenient to speak of a
constitution of the dominion that follows the constitution of society
and precedes the constitution of government. It arises after a society
is created (by adopting the social contract), and after it acquires
exclusive dominion over a well-defined territory. That is when we get
things like a right to remain at and to return to one's birthplace,
which makes no sense for a society with no territory (such as
nomads).
10.
A constitution of government, such as the Zimbabwe 1980 and
2013 constitutions, are the next step in the development. It is to
establish institutions, offices, procedures, duties, and structures that
persist from one assembly to another that are not just customs. It is
at that point that we begin to get things like laws, and paid agents
and officials, whose jobs continue beyond transient assemblies. We
also get taxes, standing armies, and professional law enforcers.
11.
Such pooled powers are generally exercised by delegating them
to some members of the society to act as agents for the members of
the society as a whole, and to do so within a framework of structure
and procedures that is a government. No such government may
exercise any powers not thus delegated to it, or do so in a way that is
not consistent with established structures or procedures defined by a
basic law which is called the constitution.
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12.
More importantly, his social compact with Zimbabwe’s subjects
also has a constitutional basis in that it derives from the people of
Zimbabwe and he exercises it through Cabinet as outlined in section
88 of the Constitution. The compacted is also rooted in the principles
of good governance, as set out in the preamble of the constitution
which binds the state and all institutions and agencies of government
at every level which include, inter alia, respect of the people of
Zimbabwe from whom the authority to govern derives, accountability
and responsiveness, due respect for vested rights (section 3 (2),
Constitution), duty to expose, combat and eradicate all forms of
corruption and abuse of power by those holding power and public
offices(section 9, constitution).
13.
In essence the relationship is an accountable and a fiduciary
one which gives rise to legal, political and social consequences. Legal,
in that a gross failure may lead to his removal from office through
constitutional channels, political in that holding the office is subject to
periodic elections, and social in that people may demonstrate their
disquiet in a manner they did on 18 November 2017 during the
solidarity march which, in turn, partly led to his recall as his party’s
first secretary and president.
14.
Applicants therefore content that the President was unable to
exercise his executive functions under s88 of the Constitution.
15.
In all circumstances, the pre-revolution government failed on
both legality and legitimacy grounds which are respectively undergird
by the constitution and social compact.
Did such an abdication amount to a threat to Zimbabwe’s agency as
a sovereign state?
Legality and Legitimacy under International law.
16.
The applicants now invite the court to decide whether the
President’s abdication of his duties amounted to a grave threat to
Zimbabwe’s sovereignty and its place in relation to other states.
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Specifically, did the abdication threaten Zimbabwe’s national security,
domestic and international interests?
Concept of sovereignty
17.
The applicants bring the court’s attention to the key definitions
of sovereignty, autonomy and agency as well as the responsibility to
protect. In its original personal sense “sovereignty,” refers to the
relational sovereignty of a king (or other leader, however selected) to
the land. However, in its wider sense it entails “the right to rule and
the obligation to rule rightly.” In his article/book…. Dr. Edward Butler
defined sovereignty as “the legitimate exercise of power, having a right
in some respect over other agents or agencies, implicitly in the very
areas in which those agencies have agency themselves.” Or, in the
words of Jack Sparrow, “the only rules that really matter are these:
what a man can do and what a man can’t do.” Also related to the
concept of sovereignty is the concept of autonomy which is the right to
self-governance, the right to make your own decisions about the
things that concern you.
18.
In Sovereignty and the Responsibility to Protect, Luke Glanville
argues that this responsibility extends back to the sixteenth and
seventeenth centuries, and that states have since been accountable
for this responsibility to God, the people, and the international
community. Over time, the right to national self-governance came to
take priority over the protection of individual liberties, but the noninterventionist understanding of sovereignty was only firmly
established in the twentieth century, and it remained for only a few
decades before it was challenged by renewed claims that sovereigns
are responsible for protection. Glanville traces the relationship
between sovereignty and responsibility from the early modern period
to the present day, and offers a new history with profound
implications for the present.
19.
When the King fails to protect his land: territorial integrity,
sovereignty and his people, the responsibility to protect lies with the
country’s security forces (Section 212 of the Constitution).
20.
Based on Carl Schmidt’s contention posited in Uddin’s article
that a strong man is important to establish a state, the applicants
contend that even if absolute power and sovereignty resides in the
President, the conduct of President Mugabe as controlled by the G40
cabal had eroded the rule of strong man who can establish a stable
state [ See Uddin, Ml, pp 8-9].
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21.
Applicants further submit that the violation of sovereignty by the
President and the lack of legitimacy posed grave security concerns to the
people of Zimbabwe which could have potentially attracted international
intervention as, geopolitically and normatively, there has been a shift
towards greater recognition of international human rights and values, which
has brought the question of popular support and the meaning to be given to
“effectiveness” in the context of revolutionary legality into sharper focus [
see, for example, the concept of universality of rights under the
Vienna 1993 Declaration and programme of action].
Sovereignty and Responsibility to protect under international law and
discussion
21 In Barcelona Light and Power Co [19701 ICJ 3, at 32, the court
held that fundamental human rights obligations cannot ever be
abrogated unilaterally, as they are obligations erga omnes, the
United Nations retrospectively accepted the NATO intervention into
Kosovo for grave human rights abuses: see United Nations Press
Release GA/9595 of 20 September 1999, D’Amato A, The
Invasion of Panama was a Lawful Response to Tyranny, [1990] Vol
84 AJIL 516, at 519. 178,7 Nanda VP, Agora: US Forces in Panama:
Defenders, Aggressors or Human Rights Activists? [1990] Vol. 84
AJIL 494: Farer TJ, Panama: Beyond the Charter Paradigm, [1990]
Vol. 84 AJIL 503.
22 The applicants submit that failure by Zimbabwe Defense Forces
to discharge their mandate under section 212 of the constitution
would have been an abdication of their responsibility to protect the
Zimbabweans through safeguarding its constitution. This
responsibility has its roots in international custom. In his
Millennium Report of 2000, then Secretary-General Kofi Annan,
addresses the issue of the relationship between sovereignty and the
responsibility to protect by recalling the failures of the security
Council to act in a decisive manner in Rwanda and the former
Yugoslavia, put forward a challenge to Member State: “If
humanitarian intervention is, indeed, an unacceptable assault on
sovereignty, how should we respond to a Rwanda, to a Srebrenica,
. D’A ato gi es the e a ple of here o less tha groups of thugs ha e a hi e-gunned their way into
po er, urderi g the e isti g de o rati rulers : at 5 9-520. 179 Note 177 at 522. 180
7
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to gross and systematic violation of human rights that offend every
precept of our common humanity?”
23 The expression "responsibility to protect" was first presented in the
report of the International Commission on Intervention and State
Sovereignty (ICISS), set up by the Canadian Government in
December 2001. The Commission had been formed in response to
Kofi Annan's question of when the international community must
intervene for humanitarian purposes. Its report, "The
Responsibility to Protect," found that sovereignty not only gave a
State the right to "control" its affairs, it also conferred on the State
primary "responsibility" for protecting the people within its borders.
It proposed that when a State fails to protect its people — either
through lack of ability or a lack of willingness — the responsibility
shifts to the broader international community.
24 Although specific to Libya, in 2011, the United Nations Security
Council adopted Resolution 1973, authorizing its member states to
take measures to protect Libyan civilians from Muammar Gadhafi’s
forces. In invoking the “responsibility to protect,” the resolution
draws on the principle that sovereign states are responsible and
accountable to the international community for the protection of
their populations and that the international community can act to
protect populations when national authorities fail to do so. The
idea that sovereignty includes the responsibility to protect is often
seen as a departure from the classic definition, but it actually has
deep historical roots.
25 The events in Zimbabwe as described on annexures (A) and (B), in
particular the hate speech, tribal dimension of the civilian coup
called upon the President, and if he failed to, the Zimbabwe
security forces to intervene on the ground that sovereign states are
responsible and accountable to the international community for
the protection of their populations. Such a measure pre-empted
any possible intervention by the international community which
would have challenged Zimbabwe’s sovereignty, agency and
autonomy.
Issues relating to the legality and legitimacy of the takeover process
and resultant government: Was the Zimbabwe Defense forces
intervention legal and for the avoidance of doubt, was the military
intervention a coup and is the post-take over government legal and
legitimate?
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26 The applicants submit that the military intervention process and
the resultant government are legal and legitimate to the extent that
they meet the criteria set under the doctrine of “successful
revolution” or “revolutionary legality”. [ See per Cullinan CJ of the
High Court of Lesotho in Mokosoto v HM King Moshoeshoe IT
[1989] LRC (Const) 24 at 118.]
27 In light of the approach suggested at the outset to strike a balance
between the strict formalism of legality and the practical realism of
legitimacy of a takeover, the applicants further submit that the
Zimbabwe military takeover meets the so called four- element test
of revolutionary legality which has gained international acceptance:
“..For a revolutionary government to achieve due jure status, that is, to
become internally a legal and legitimate Government, the following
conditions should exist: (a) the revolution was successful, in that the
Government was firmly established administratively, there being no
other rival one; (b) its rule was effective, in that the people by and
large were behaving in conformity with and obeying its mandates; (c)
such conformity and obedience was due to popular acceptance and
support and was not mere tacit submission to coercion or fear or
force; and (d) it must not appear that the regime was oppressive and
undemocratic.” Mitchell v DPP [1986] LRC (Const) 35 at 63. See
also Mokotso v H M King MoshoeshoeII [1989] LRC (const) 24 at
92.
Legality of the military intervention
28 Applicants submit that the Zimbabwe Defence Forces’ intervention
was legal to the extent that it complied with Zimbabwe’s
constitution and international law and best practice governing
military interventions.
29 The Zimbabwe Defence Forces has a duty to protect the people of
Zimbabwe and to uphold the Constitution. This is clearly laid out
in s212 of the Constitution which reads as follows:
“S212 Function of Defence Forces
The function of the Defence Forces is to protect Zimbabwe, its people, its
national interests and its territorial integrity and to uphold this
Constitution.”
30 Applicants submit that the actions of the Zimbabwe Defence Forces
were to merely protect the people of Zimbabwe, including the
President, his legacy and national symbols and to uphold the
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Constitution in line with the above referred section. In essence, the
military intervention was constitutional and complied with best
practice relating to military-civil relations to the extent that it was
carried out incisively, proportionately, was based on public support
and was done without abrogation of rights.
31 Although section 213 of the Constitution outlines that “only the
President, as commander-in-chief of the Defence Forces has power to
authorize the Deployment of the Defence Forces,” Applicants draw
the court’s attention to the phrase “subject to” preceding the
section which implies that the president’s powers are not absolute
and must be exercised with due regard to other provisions in the
constitution.
32 The applicants submit that the events within ZANU PF, although at
a party level had huge implications on the stability of the nationstate since ZANU PF is the first post-independence revolutionary
party.
33 The facts stated from paragraphs 18-24 of the affidavit, which have
not been disputed have the cumulative effect of rendering the
president unfit to exercise his sovereign functions either through a
prerogative or through the cabinet. As the ZANU PF Central
Committee subsequently concluded: the centre of power was no
longer holding leading to the recalling of the President (see ZANU
PF Central Committee Resolution No.9 19/11/17.) In fact, he was
a central character in the drama so much so that a conflict of
interest would arise if he exercised his functions under section 212
in a manner that protected his wife and his own long term
succession plan which those in ZANU PF deemed a threat to
national interests.
34 This brings about the question of whether or not the President was
fit to exercise his functions under section 97 generally and
specifically to deploy the military under section 213. The
importance of this is that if the President was the one who had
precipitated the violation of the Constitution, then the authority to
deploy the defense forces in defense of the same should not, on
both legality and legitimacy accounts, vest in him. The Applicants
therefore contend that the military intervention without the
authority of the President was indeed legal and legitimate to the
15
extent that it either complied with the constitution or in the
alternative was meant to safeguard it and enjoyed public support
as the president had lost the legal authority and legitimacy to
deploy the forces.
35 On the grounds stated in paragraphs 15-20, the applicants submit
that Zimbabwe’s national interests were at stake. The G40 and the
first lady’s actions had become unpredictable since 2014 ZANU PF
Congress, party and government decisions were not in accordance
with the rule of law and laid out administrative procedures but
arbitrarily, for example, two vice presidents who were meant to
succeed the President in circumstances prescribed under section
(101) of the constitution had been arbitrarily dismissed at the
instigation of the G40 and the first lady. The obtaining situation
was incendiary, fast moving and amounted to a civilian coup
(paragraph 20, affidavit) and only the military had the necessary
show of force “to arrest and reverse the failure by first respondent
to keep the country on the path of constitutionalism and
heightening of security risk to the nation (paragraph 26, affidavit).
36 Although much attention has been paid to the military’s role, the
applicants submit that the intervention was a small but significant
chain of events dubbed ‘Operation Restore Legacy’. The operation
also included the solidarity march both initiated and led by the
citizens, the ruling ZANU PF politburo decision to recall the
president as first secretary of the party and head of state, the
aborted impeachment proceedings led by parliament, painstaking
negotiations that were taking place in the background and the
ZANU PF Central Committee decisions and the extra-ordinary
Special Congress that met to ratify the central committee decisions.
Applicants submit that although some of these events were at a
party level, they reverberated in the nation and undermined the
state stability due to the inter-twining between ZANU PF, the
government and the war veterans who warned the president that
they would not accept a government led by the first lady. If the war
veterans had followed on their threat not to respect the president’s
appointee. Zimbabwe would have descended into a chaotic failed
state.
16
37 The applicants submit the army only acted within the confines of
the Constitution and in instances where it did not, it did so to
protect it, and followed a timetable to restore order including
relinquishing some of the duties they had assumed to a civilian
government and to that extent their conduct was both legitimate
and proportionate.
38 Applicant therefore submits that the army acted within the
confines of the rule of law and subsequently allowed due process to
take its course in accordance with the rules of natural justice. For
instance, borrowing from employment law again, even if the
applicants have submitted that the president’s conduct was akin to
a ‘gross misconduct, nevertheless, the army and all the parties
concerned followed a fair procedure and in the case of the army, to
root out the criminals around the president and further protect the
president as he carried out his routine duties (paragraph 34,
affidavit).
Was the military takeover a coup therefore treasonous?
39 Although the issue of the coup was not availed in the application, it
is important for the court to be seized with this matter as a matter
of public interest. Applicants deem it necessary to address this
point since a senior government minister, a Mr. Simon Khaya
Moyo, announced that the actions of the Defense Forces of
Zimbabwe could amount to treason. Secondly, it’s important to
address this issue in light of the ‘not-a-coup’, public discussions
which were first started on 13 November when Major General
Constantino Chiwenga, Commander of the Armed Forces of
Zimbabwe, surrounded by more than 70 senior military personnel
read statement which partly stated, “The current purging which is
clearly targeting members of the party with a liberation
background must stop forthwith.” And on the following day at 0130
am, when Major General Sibusiso Moyo of the Zimbabwe National
Army announced that, “the situation in our country has moved to
another level”. “We wish to make it abundantly clear that this is
not a military takeover of Government,” Further and finally, critics
have similarly raised the same issue, therefore it is important to set
the record straight through a judicial pronouncement as this an
important historical epoch for Zimbabwe.
17
40 In light of the facts in the applicants’ affidavits and submissions
made above, it is clear that when it intervened, the ZDF was clearly
aware that military intervention in a civilian government should
not be done lightly, is an exception rather than the general rule. It
was the first time it ever did so in independent Zimbabwe and its
subsequent handing over of power to a civilian government
indicates that there was no intention of setting a precedent to
casually interfere in civilian affairs. It did so in a focused, pointed
and proportionate manner. (See paragraphs 17-20, First Applicant’s
Affidavit.)
Legality and legitimacy of the new government
41 The applicants submit that the new Zimbabwe revolutionary
government is legitimate and the court should further declare such
legitimacy as it had the people behind it and with it when it took
over in accordance with both the ZANU PF party, parliamentary
processes and national constitutions. Legality should be achieved
only if and when the people accept and approve (the new regime)
for in them lies political sovereignty, and the Court so finds
[Madzimbamuto v Lardner-Burke [1969] 1 AC 645].
42 The new Zimbabwe government is legitimate since the former
president resigned of his own volition and never attempted to wrest
power which in turn brought about a “certainty” [emphasis is
ours]. In delivering the majority judgment in the Privy Council in
Madzimbamuto v Lardner-Burke, and in referring to the earlier
cases, Lord Reid stated:
“It would be very different if there had been still two rivals contending
for power. If the legitimate government had been driven out but was
trying to regain control, it would be impossible to hold that the
usurper who is in control is the lawful ruler, because that would mean
that by striving to assert its lawful right the ousted legitimate
government was opposing that lawful ruler.”
Lord Reid concluded:
In their Lordships’ judgment that is the present position in Southern
Rhodesia, the British government acting for the lawful Sovereign is
taking steps to regain control and it is impossible to predict with
18
certainty whether or not it will succeed.... Their lordships are therefore
of the opinion that the usurping government now in control of
Southern Rhodesia cannot be regarded as the lawful government.
The majority of the Privy Council concluded that there could be
neither de facto nor de jure recognition in circumstances where a
usurper has gained control but the legitimate government was trying
to regain power.
43 It is further submitted that evolutionary legality could not be
judged on the sole criterion of effectiveness of political change, as
contemplated by Kelsen’s pure theory of law, “because by making
effectiveness of the political change as the sole condition or
criterion of its legality, it excludes from consideration sociological
factors of morality and justice, which contribute to the acceptance
or effectiveness of the new Legal Order”, therefore the legal
consequences of such a change must therefore be determined by a
consideration of the total milieu in which the change is brought
about, including the motivation of those responsible for the change
and the extent to which the old legal order is sought to be
preserved or suppressed [Anwarul Haq CJ in Bhutto v The Chief
Staff of the Army and Federation of Pakistan PLD [1977] SC
657].
44 The military intervention enjoyed full support from the Zimbabwe
public, advanced their interests and protected minority rights,
which is the essence of democracy. The intervention was therefore
not a consequence of discordance but concordance between the
military and the civilians.8Many Zimbabweans were relieved to see
the President gone although they still respected his role as
Zimbabwe’s founding father. As stated elsewhere above, legality
should be achieved only if and when the people accept and approve
(the new regime) for in them lies political sovereignty, and the
Court so finds [Madzimbamuto v Lardner-Burke [1969] 1 AC
645].
8Ali,
Zulfiqar. 2014. Contradiction of concordance theory: Failure to understand military intervention in Pakistan. Armed
Forces & Society 40 (3): 544-67.
19
45 In intervening, the ZDF therefore acknowledged the importance of
restricting reserved domains granted to the military in the
transition processes in order to strengthen prospects for
democratic stability, in particular, that highly politicized military
structures among transitional states have a deleterious effect on
the quality of democracy. More specifically, if the military has
institutionalized its role in politics as being interventionist, the
likelihood of democratic consolidation becomes difficult (Tusalem,
Rollin F. 2014. Bringing the military back in: The
politicization of the military and its effect on democratic
consolidation. International Political Science Review 35 (4):
482-501).
46 The acceptance of the new government by Zimbabweans from all
walks of life not only validates and legitimizes the end result of the
intervention but the process too. This honorable court’s attention is
brought back to 1988 and 1992, when the Lesotho High Court and
the Lesotho Court of Appeal, respectively, considered the legality of
successive coups; the first in 1986 and the second in 1990. In the
High Court in Mokotso and Others v HM King Moshoeshoe II
and Others, Cullinan CJ endorsed that broader interpretation
and, after also referring to the decision in Jilani,9 stated:
“I observe that a revolution cannot be ‘successful’ unless there is
‘habitual submission to it from the citizens’, and here I do not
necessarily equate ‘submission’ by the citizens with the revolution’s
popularity as such. If the citizens do not submit, how can the
revolution be said to be successful?.......If the judge is satisfied that
that the new regime is firmly established and there is no opposition
thereto, and that the people are acting by and large in conformity with
the new legal order, signifying their acceptance thereof, for whatever
reason, I do not see that the judge can hold that regime to be other
than legitimate. Clearly the mandate in the matter lies with the
people, in whom resides the ultimate source of power in the state....
The people make their choice in the matter, if they decide to accept
the new regime, even if that decision is based on weakness or even
fear, such decision may not be gainsaid.” [Nang Mo Kham Horn
'Revolutionary Legality": The Coup d’Etat of 1962 and the
9AsmaJilani
20
v Government of Punjab PLD [1972] SC 139 at 179-180.
Burmese Military Regime, Southern Cross University Law Review,
pp 90-92]
47 Notwithstanding the argument raised above on the constitutional
efficacy of the intervention and new government, public opinion
makers who describe the process as illegitimate base their
definition of legitimacy on a single factor test of efficacy, without
considering all relevant socio-politico-legal factors.
48 The applicants wish to persuade this court to also seriously bring
into equation the socio-political aspects of the given society; all
possible variables of legitimacy such as legal, political, social,
historical and moral factors must be weighed in. Apart from
legality, the multifactor approach takes into account
election/plebiscite, change of constitution, implied consent, valueconformity, idealism of patriotism, higher performance on
economic and security fronts, international recognition, and so on.
Such an approach can take care of harmonizing the legal world
and the real world. In coup-prune countries, the military proceed
to usurp power because they know that people value other things,
like economic prosperity, security, law and order, etc. Therefore,
the court must consider other components, not only because
people’s beliefs are linked to these components, but also because
they are the pragmatic criteria for consideration. Courts do not
work beyond society; rather they do so in socio-cultural milieu in
which they are located. Courts’ decisions must take full interest in
what fits into the particular mould of the society in issue. Societal
issues are as important as legalistic consideration of legal order [
See Uddin, Ml, pp 18-22].
49 A sociological approach takes into account factors such as local
conceptions of heroism, power and destiny in Africa, and how the
public image of the new president resonates with time-honored
narratives about heroic figures in Zimbabwean culture. As was the
case in Mali when Sanago took power on 22 March 2012, this case
demonstrates that understanding religious and cultural
worldviews, as opposed to narrow legal interpretations is essential
for understanding the workings of political power. The new
president has been portrayed in songs and public discourse as a
21
lion and a crocodile which is now ruling, such as (Garwe redu
tongai), and also as a messianic figure (mudhara achauya) and a
biblical Joshua who would take Zimbabwe to the Promised Land.
These cultural and religious narratives heralded the emergence of
the new social compact in place of the old and strikes at the contre
of legitimacy as appose to legality.
50 . Notwithstanding applicants’ submission that the army’s
intervention was not a coup, the contention by Bruce White House
writing on Mali sheds light to the social and cultural dynamics of
power transfer. Whitehouse contends that in a context of severe
state crisis and popular disenchantment with a formally
democratic political process that many saw as fundamentally
exclusive and un-democratic, political actors may build their public
appeal more effectively on culturally specific concepts like nganaya
(the heroism of the man destined for greatness) than on formal
legal mandates or generic populism. Where the abuse of power has
delegitimized ostensibly democratic leaders and the institutions
that consecrate them, many people look for alternative sources of
legitimacy, and aspiring leaders will exploit that willingness. Most
Zimbabweans did not see the army’s action as a blow against
Zimbabwe’s young democratic system, but as the only way to save
democracy in the country from the depredations of a venal elite
determined to entrench itself in power [Whitehouse, Bruce. 2012.
The force of action: Legitimizing the coup in Bamako,
Mali. Africa Spectrum 47 (2-3): 93-110.]
Regional and international legitimacy
51.Further, the acceptance of the new government by the African
region, various states and the international norms and standard
setting bodies such as the United Nations is clear vindication of
the applicants’ argument that the ZDF military intervention was
not a coup. The acceptance by the African Union and the SADC
was key. Between 1952 and 2012, there were a total of 88
successful military coups in Africa. Of those, 63 occurred prior
to 1990, and 10 cases since the adoption, by the defunct
Organization of African Unity (OAU), of the Lomé Declaration in
July 2000, banning military coups and adopting sanctions
against regimes born out of this [Souaré, Issaka K. 2014. The
22
African union as a norm entrepreneur on military coups
d'état in Africa (1952-2012): An empirical assessment. The
Journal of Modern African Studies 52 (1): 69-94].
52.The African Union did not consider the Zimbabwe situation as a
coup. Consequently, it did not impose sanctions or ban the new
Zimbabwean government and in so doing accepted it as both
legal and legitimate.
Conclusion
On the issues relating to the legality and legitimacy of the pre-take over
government, the applicants conclude that:
53.The government that existed before the military intervention
had become illegal and illegitimate, regardless of the president’s
role as Zimbabwe’s founding father. It failed on both legality and
legitimacy grounds on the following accounts:
54.The first respondent (the “President”) was incapable of
exercising his executive functions under section 88 of the
Constitution of Zimbabwe during the period leading to the
military intervention.
55.His failure to uphold the Constitution amounted to a gross
violation of the Constitution and/or an abdication
56.The abdication amounted to a threat to Zimbabwe’s agency as a
sovereign state and its place in relation to other states.
Specifically, it threatened Zimbabwe’s national security,
domestic and international interests.
On issues relating to the legality and legitimacy of the takeover process and
resultant government, the applicants conclude that:
57.The Zimbabwe Defense forces intervention was legal as it
complied with the constitution and international law.
58.The Intervention was legitimate as it was driven by public
support.
59.The intervention was not a coup but a revolution which is
validated under the doctrine of revolutionary legality.
60.The new government that came into power after the intervention
is both legal and legitimate. It is legal as it came into power
following due processes set out both in the ZANU PF party
constitution and the national constitution after the resignation
23
of the former president. The government is legitimate as it
enjoys public support and is not being challenged by the former
president who resigned voluntarily.
24