Unconstitutional change of government is unacceptable

Last Wednesday, on November 15, 2017, Zimbabwe’s military leaders seized power, placing long-time President Robert Mugabe under house arrest and deploying armoured vehicles to the streets of the capital, Harare. This act is widely seen as a coup though the military doesn’t call it a coup but rather a takeover. As a result, thousands of people over the weekend took to the streets demanding Mugabe to step down. Mugabe, the world’s oldest serving Head of State, is reportedly under house arrest, as troops are stationed at the presidential palace. The ruling party on Sunday fired him as its leader, giving him less than 24 hours to quit as head of state or face impeachment. His former vice Emmerson Mnangagwa was named as his replacement. However, African Union leader Alpha Conde expressed his serious concern regarding the unfolding situation in Zimbabwe. On behalf of African Union (AU), President Conde said the takeover of power and the detention of President Mugabe ‘seemed like a coup’. He also called for immediate restoration of the constitutional order and called on all stakeholders to show responsibility and restraint. Though the military insists that it’s not a coup, the situation bore all the hallmarks of a coup. As a matter of fact, the military took over the headquarters of national broadcaster ZBC, a State TV in Harare, and a significant army presence was at the city’s international airport. According to the military, Mugabe and his family are ‘safe and sound and their security is guaranteed’. They also said the purpose of the current operation is to target ‘criminals’ close to Mugabe who were causing ‘social and economic suffering.’ Sources from inner circle revealed that the spark is a simmering succession battle in the ruling Zanu-PF party that came to a head two weeks ago when Mugabe sacked his powerful vice president, Emmerson Mnangagwa, who has large support from military, while paving the way for his wife, Grace Mugabe, to succeed him. Whatever the motive, could this justify military takeover in this modern age? Though Mugabe is old and physically frail, he remains a legitimately elected Zimbabwean president. The prevailing situation challenges the notions of democracy (as understood to mean a rule by the majority) and self-determination (as understood to mean peoples’ right to decide on their political, socio-economic and other fates as a unit). The military takeover also raises important questions about Zimbabwe’s adherence to one of African Union’s principles: the rejection of unconstitutional change of government. Perhaps more importantly, the situation poses real challenges for the AU in how it implements the principle prohibiting such unconstitutional changes of government. The African Union Constitutive Act, especially in its Article 4, proclaims the ‘respect for democratic principles, human rights, the rule of law and good governance’ and ‘condemnation and rejection of unconstitutional changes of governments’, among its cardinal principles. Africa has also pledged ‘to enforce the strict adherence to the position of the Union on unconstitutional change of government. Given the uncertainty of the situation, the AU’s careful position is no surprise. On the one hand, a democratically elected administration has been removed through military takeover; on the other hand, a bigger part of population is apparently fed up with Mugabe’s regime and his government that seems to no longer represent the wishes of the majority but rather the wishes of perhaps a smaller part of adherents of ZANU–PF, the ruling party in Zimbabwe since independence in 1980. AU’s principle on unconstitutional change of government and the implementation thereof need serous revision and reconsideration. Attempts should be made to clarify the principle and how it is to be implemented. There is a crucial need to ensure consistency in the practices of the Union, although special circumstances must also be taken into account on a case-by-case basis. However, the AU still needs to crystallise and clarify its norms and practices. This is a plea for clarity of concepts, and consistency in their application, by all and for all. The most important example that reflected the Union’s adherence to the unconstitutional changes of governments is when it reinstated Michel Kafando, who was by then Burkina Faso’s interim President, following the ouster of Blaise Compaore. A military coup had been carried out by presidential guards, the loyalists of former President Compaore. Shortly after the coup, African Union took the leading role in condemning the coup and demanded the restoration of civilian rule. During that time, it suspended Burkina Faso from the AU and threatened to impose sanctions on the coup leaders if they didn’t release the political prisoners and return the transitional government to power. From the lens of international law and standards of democratic nations, a military takeover, or a coup, is utterly poignant and unfitting. In my view, the point isn’t about supporting Mugabe’s overstay in power, nor anyone in the system, but about observing Article 4 of AU Constitutive Act, which requires the organisation to condemn and reject unconstitutional changes of governments. This Constitutive Act, in principle, is a catalyst for building a culture of peace and political stability in Africa. It portrays a significant departure from the authoritarian political order of the formerly OAU and reflects a new thinking in African politics in the 21st century. The writer is a law expert and academic. The views expressed in this article are of the author and do not necessarily represent those of The New Times.

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Unconstitutional change of government is unacceptable