With the re-emergence of the former President Robert Mugabe in the public limelight, it is only befitting that this piece is dedicated to exploring issues around his recent interview and claims, but I will also touch on a new constitutional violation by President Emmerson Mnangagwa.
By Paul Kaseke
Much to many people’s irritation, Mugabe held a presser addressing various issues.
This was, of course, his first media interaction since he resigned from office last year.
First, as Mnangagwa rightfully said, as a private citizen, Mugabe is entitled to comment and address issues he feels the need to address as well as the right to participate in political life.
While it may not be politically advisable for him to be back in the limelight after his ruinous rule, he is constitutionally permitted to do so since section 67 of the Constitution grants every citizen the right to participate in politics, join a political party, start a political party and indeed make political choices freely.
It’s just a bit of an annoyance to find that the former President feels entitled to govern Zimbabwe until his death, but we can pardon it as part of the ramblings of a bitter man.
Thankfully for him, the Constitution allows him to be one without repercussions.
Could Mugabe have been granted immunity from prosecution legally?
There has been talk of a supposed immunity deal given to the former President during the negotiations for him to step down.
Mnangagwa has deliberately (I believe) avoided confirming this assertion in public and for good reasons too.
The most obvious reason is that it could not have been legally done by anyone during that negotiation process.
The Constitution itself does not provide immunity to a President (save to exempt proceedings while the President is in office).
It, therefore, follows that there is nobody who could have legally and rightfully offered immunity to the former President.
Any agreement made to this effect would be null and void. The decision to prosecute (generally) remains with the National Prosecuting Authority in terms of s258 and s260 of the Constitution.
Presidential immunity is covered by s98 of the Constitution, which sets out that a President cannot have civil or criminal proceedings brought against him or her while in office.
That does not mean he or she is immune from prosecution perpetually, it just means that while this individual occupies office, proceedings must be stalled until the President vacates office.
Section 98(2) qualifies this and adds that proceedings may be brought against a former President.
Nothing could be clearer, former presidents can be held liable for their conduct during their term of office both in a civil law and criminal law sense once they vacate office.
There can, therefore, be no individual or law that can purport to give Mugabe any immunity.
He became “eligible” for legal proceedings the day he resigned and there is therefore no reason why the President cannot be sued or prosecuted.
Having said that, the National Prosecution Authority (NPA) must ensure that it independently investigates Mugabe without being used as puppets in the mudslinging competition Zanu PF and the former president are engaged in.
The decision to prosecute must be done rationally, in good faith and with regard to the Constitution, failing which an argument for malicious prosecution could be made.
Is it possible that Mnangagwa pardoned his predecessor as per the presidential pardoning powers?
Simply put, this cannot even be a discussion point because if the immunity story is true, then it would have taken place before Mnangagwa was sworn in, which means these powers could not have been exercised by him.
Only a sitting President could use those powers. In addition to that, the powers of the President to pardon, referred to as the powers of mercy in the Constitution in s112, largely relate to the ability of the President to reduce a sentence, release a convicted prisoner among other things.
These could be exercised by the current President if Mugabe is convicted during Mnangagwa’s presidency, but there is, however, a clause that gives rise to ambiguity in terms of the powers of mercy. Section 98 (1) (a) reads: “The President, after consultation with the Cabinet, may exercise the power of mercy, that is to say, may . . . grant a pardon to any person concerned in or convicted of an offence against any law.”
There is, therefore, the possibility that the powers of mercy can be extended to someone who has not been convicted of an offence, but is merely concerned in the offence against any law, in other words, someone who could be convicted, that is if one takes a literal interpretation of this provision.
This would, however, be a matter of interpretation that should be determined by the Constitutional Court if raised.
This is not material to Mugabe’s situation because the President has said nothing about offering him any immunity or pardon.
If anyone tried to offer Mugabe immunity, it would have been the military negotiators, but that too is a non-starter, as they clearly have no mandate to do so constitutionally.
The bottom line remains that nobody was competent to offer Mugabe or his family an immunity deal and they remain liable for prosecution.
It is up to the NPA to determine what charges, if any, the former President will have to answer for.
In doing so, they need be guided by the Constitution, and not because of a retributive agenda that may come from the current administration to silence the former President.
Justice must not only be done but it must be seen to be done even for individuals like the former President.
And finally, . . . (another) constitutional gaffe by the President
It seems Mnangagwa’s legal team have let the President step into another constitutional violation with Proclamation 1 of 2018 (Statutory Instrument 28 of 2018).
In that Proclamation, the President among other things, divided Beitbridge into wards.
The problem with this is that post-2013, the President does not have a constitutional basis to create voting wards.
That is in direct violation of s160 (2) of the Constitution wherein only the Zimbabwe Electoral Commission (Zec) has the mandate of delineating local authorities into wards for purposes of elections.
In fact, in terms of s161(11) a proclamation by the President is done after Zec has sent him a final report.
The section is unequivocal that the determination of Zec in this regard is final and that the President plays no role in the substantive determination of wards and constituencies.
The President, acting on unconstitutional and repugnant laws, basically took on Zec’s mandate with his proclamation.
This is a threat to the independence of Zec and must be remedied as a matter of urgency.
These constitutional violations are just embarrassing and must come to an end . . . just saying.
Paul Kaseke is a legal adviser, commentator, analyst and former law lecturer with the Wits Law School & Pearson Institute of Higher Education (formerly Midrand Graduate Institute). He serves as director and current group chair of AfriConsult Firm. He writes in his personal capacity. You can give him feedback via email: email@example.com or follow him on twitter @paulkasekesnr