ON the catalogue of Justice, Legal and Parliamentary Affairs minister Ziyambi Ziyambi’s proposed amendments to the Constitution, which Cabinet approved on February 10, 2026 is a revision to Section 212 on functions of the Defence Forces.
The current formulation says: “The function of the Defence Forces is to protect Zimbabwe, its people, its national security and interests and its territorial integrity and to uphold this Constitution”, and Ziyambi proposes to replace the words “to uphold the Constitution” with “in accordance with the Constitution”.
By why would he want such an amendment?
The answers lie in Zimbabwe’s party-military-state structure. The military is a big factor in Zimbabwe’s present-day politics, the current government having in the first place been brought in through military action, the so-called “Operation Restore Legacy”.
In many places in the world when a coup happens, the plotters — who effectively would have committed treason — sanitise their illegal action and buy legitimacy.
One way of doing it is through smokescreen elections where they then earn the tag “democratically elected”.
Another is to go to court and get an order, which says the take-over of power was legal. The order effectively protects the coup-plotters from prosecution in case their actions are reversed and lends them some kind of legitimacy at least in the eyes of the uninitiated.
Mnangagwa went to the High Court in November 2017 and obtained an order in a case called Joseph Evurath Sibanda and Leonard Leonard Chikomba v President of the Republic of Zimbabwe — Robert Gabriel Mugabe N.O.; Minister of Defence, Commander of the Defence Forces of Zimbabwe and the Attorney-General of Zimbabwe (2017) HC 10820/17.
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In that matter the then Judge President George Chiweshe handed down an order by consent, which said the following:
“The actions of the Defence Forces of Zimbabwe in intervening to stop the take-over of the first respondent’s constitutional functions by those around him are constitutionally permissible and lawful in terms of section 212 of the Constitution of Zimbabwe in that:
“They arrest the first respondent’s abdication of constitutional function, and b. They ensure that non-elected individuals do not exercise executive functions which can only be exercised by elected constitutional functionaries.
“It is consequently ordered that: The actions of the Defence Forces being constitutionally valid, the second respondent has the right to take all such measures and undertake all such acts as will bring the desired end to its intervention”.
And then another case followed at the Constitutional Court, filed on March 1 2018 by a political outfit called Liberal Democrats and actors such as Linda Masarira and Vusumuzi Sibanda.
The case was decided on July 16, 2018 and is reported as Liberal Democrats and 4 Others v President of the Republic of Zimbabwe E.D. Mnangagwa N.O. & 4 Others (CCZ 7 of 2018). In that case Chief Justice Luke Malaba endorsed the Chiweshe High Court judgment.
The Constitutional Court simply referred in endorsement the finding of the High Court and concluded that: “The applicants cannot seek to have the question of the constitutionality of the military action enquired into by the Court whilst the order of the High Court determining the same issue is extant”.
This is in fact an incorrect judicial pronouncement in that the order of the High Court was a consent order, and there was no written judgment.
Such situations and judicial orders do not give birth to binding legal precedent. So, this was a convenient yet incorrect position of the Zimbabwean chief justice to take.
Yet still, that Constitutional Court order now stands.
On the ascension of President Mnangagwa to the presidency, the Constitutional Court said: “It is common cause that the assumption by the first respondent of the office of President was in accordance with the procedural and substantive requirements of paras 14(4)(b) and 14(5) of the Sixth Schedule to the Constitution.
“A vacancy in the office of President occurred as a result of the resignation by the former incumbent. [...] As a result of strict compliance with all the procedural and substantive requirements of a constitutionally valid assumption of the office of President left vacant by reason of resignation in terms of s 96(1) of the Constitution, the first respondent assumed office as President.
“The question of the constitutionality of the assumption by the first respondent of the office of President cannot arise from these self-evident facts”.
What is the import and meaning of these two judgments? Cumulatively, they ostensibly mean that “a military intervention” as judicially sanctioned as legal in Zimbabwe on the basis of the army “upholding the Constitution”.
So, if the army wages a coup and removes a sitting head of state for abdicating office or undermining the Constitution, the army can cite these judgments and claim to be upholding the Constitution.
Going to court to sanitise a power take-over is not novel to Zimbabwe. Madagascar, Uganda, Grenada, Thailand and Mali have all done it.
Even in the Rhodesia days, the Madzimbamuto cases Madzimbamuto v Lardner-Burke, 1966 RLR 756, 777 (Rhodesia General Division) and the subsequent decisions of the Rhodesian Appellate Division (RAD), Madzimbamuto v Lardner-Burke N.O., 1968 (2) SA 284 (RAD) and R v Ndhlovu 1968 (4) SA 515 (RAD), adopted the same kind of judicial philosophy (jurisprudence of revolution) to endorse usurpation of power in an unconstitutional way.
The current administration benefitted from the two 2017 and 2018 judgments. Now, they are acutely aware of the danger posed by this window they created. So, they now want to close that window.
It is like erecting a ladder to climb up and then once up you destroy the ladder so that no one else uses it. So the Mnangagwa administration wants to reverse those judicial decisions, which it used to justify its own 2017 assumption of power.
One way of destroying this ladder is to go back to court for the courts to reverse their 2017 and 2018 decisions. Another way is to revise the very clause those two judgments relied on — Section 212. In this “omnibus” amendment bill, Ziyambi has found convenient room to choose the latter.
In political terms, amendment to Section 212 is “coup-proofing”.
Anyway, this is a foolhardy amendment.
A coup by definition is illegal and treasonous, so this small amendment is inconsequential if it happens. It has been like that everywhere in the world where coups have been executed. There is nothing like a legal coup that complies with a constitution.
The real value of this amendment is to expose fear and duplicity as opposed to serving any functional purpose.
Kika is a Zimbabwean jurist.
