By Luke Tamborinyoka
In the medical field and in epidiomological terms, a full-blown condition means that the viral attack or whatever ailment it may be has spread across the whole body. Medical experts would wish to contain and mitigate all manner of ailments before they become full-blown. The full-blown condition is medically dreaded as it is difficult to ameliorate. The full-blown condition presents a nightmare to every epidiomologist, regardless of their patience and expertise. Similarly, the spectre and ailment of illegitimacy that has hitherto only been confined to the executive arm of government has now spread to other key pillars of the State. Apart from the executive, both the judiciary and Parliament are now tainted by the same stench and odour of illegitimacy. This means that the entire body politic is now wallowing under the hugely constraining baggage of illegitimacy, itself a manifestation of a monumental Constitutional crisis that has engulfed the country.
Parliament is now saddled with foisted representatives following the illegal recalls by a surrogate party in March 2020. That key body of the State that is supposed to play an oversight role on the executive is now riddled with unelected representatives that did not come from the people. In fact, some of them were defeated in 2018 but somehow ended up in Parliament as they sneaked into the august House through a murky and pitch-dark orifice, courtesy of a captured and politicised Judiciary and Parliament that have themselves become illegitimate at their very apex.
My namesake Luke Malaba’s politically-enabled effort to remain in office as Chief Justice in spite of an unambiguous court ruling that quashed the unconstitutional extension of his tenure has marked an all-time low for our Judiciary. Malaba and the team of conflicted Supreme Court judges that was recently sworn into office have become the clearest evidence that the contagion of illegitimacy has now engulfed all the three pillars of the State.
My piece this week seeks to expose the fact that by affecting all the tripod legs of government _viz_the Judiciary, Parliament and the executive, illegitimacy has now permeated the very heart and marrow of the State. With an illegitimate President, an illegitimate Parliament and an illegitimate Judiciary, we now have a full-blown crisis in the country that needs to be resolved as a matter of urgency. The executive, Parliament and the Judiciary as the key pillars of the State are now tainted by serious legitimacy inadequacies. Now by all measures, this presents a gargantuan Constitutional crisis as none of these illegitimate pillars can legitimately claim to address the legitimacy inadequacies of the other. Therein lies the gist of our crisis!
The Illegitimate Executive
The illegitimacy bug first afflicted the Presidency when Mr Mnangagwa stole his mandate in the disputed poll of 2018. Section 88 of the Constitution is clear that executive authority is derived from the people of Zimbabwe and certainly not from a captured Judiciary. Yet intimate detail is now in the public domain, with named key players in the ZEC secretariat as well as in the Judiciary who played a key role in the massive electoral heist of July 2018 that yielded an illegitimate executive order.
The executive is being led by a disputed and illegitimate President who is stridently knocking down and obliterating all presumed obstacles to his tenure, including commonsense, so as to protect a now illegitimate Chief Justice. The idea to so protect is to ensure that the illegitimate Chief Justice will in turn illegitimately save the illegitimate President as he did in 2018. It’s all a massive and complex cauldron of illegitimacy, each absolving the other.
Indeed, it has become a confusing maze of illegitimacy that stemmed from an illegitimate President illegitimately foisted on the the people in 2018, validated by an illegitimate Chief Justice now being illegitimately protected so that he can confer a veneer of legitimacy to an illegitimate President come the crucial year 2023!
I hope my legitimate submission is still making sense in this confusing milieu of illegitimacy!
The Illegitimate Parliament
Ordinarily, Parliament is presumed to be a theatre of people power. This is because it must ordinarily comprise legitimate legislators elected directly by the people.
But alas, following the illegal and illegitimate recalls of the elected and legitimate MPs in March last year, Parliament is now riddled with MPs fished out of individuals’ pockets and foisted on the people. To that end, Parliament is now illegitimate. This key pillar of the State now comprises even some individuals that the people themselves rejected in an election in 2018.
Parliament now largely consists of representatives deployed as guardian merchants of murky personal interests that have no nexus whatsoever to the people, who themselves are truly sovereign.
The Zimbabwean Parliament is now illegitimate. It has ceased to be a theatre of people power but has become the very bane of patronage and the reversal of the people’s will. Yet section 117 (1) of the Constitution unequivocally states that legislatve authority derives from the people of Zimbabwe and nowhere else. Section 3 (2) (f) of the founding values states that the State at every level must respect the people of Zimbabwe from whom the authority to govern is derived. But when representatives do not come from the people and when in fact a huge coterie of MPs now in Parliament consists of some who were rejected by the people in 2018, then this simply means Parliament too has become illegitimate.
There is a fact that readers need to keep in mind. The Speaker of Parliament, Jacob Mudenda is a gatekeeper of Mr Mnangagwa’s parochial political interests in this important pillar of the State. In 2004, Mudenda, then the Zanu-PF Matabeleland North provincial chairman, was one of the seven factional chairpersons who were flown to Dinyane in Tsholotsho to elevate Mr Mnangagwa into the Zanu-PF presidium. He is certainly at Parliament to further Mr Mnangagwa’s parochial political interests by undermining the independence and legitimacy of Parliament as a key pillar of the State that plays the oversight role.
The illegitimate Judiciary
The drama around the unconstitutional extension of my namesake Luke Malaba’s tenure is the clearest evidence yet that the Judiciary is now riddled with illegitimacy. That a Chief Justice, the extension of whose tenure has been quashed by the courts, continues to report for work has blighted the integrity of the country’s Judiciary.
My namesake has soiled a very good name.—Luke. Even the book of Luke in the Bible vouches that our Lord Jesus Christ knew when to call his time. He went back to His Father when He saw that He had accomplished His mission. Or maybe our own Luke knows he still has a mission to accomplish in 2023, in the event that the courts are once again called upon to adjudicate on a disputed Presidential poll?
Section i64 of the Constitution states that the courts are independent and are subject only to the law. The same section exhorts independence and impartiality on the part of the Judiciary. Yet under Luke Malaba, this key pillar of the State has been politicised and effectively rendered illegitimate.
In another related note, it is equally tragic that it has taken eight years for justice to prevail for Tungamirai Madzokere and Last Maengahama. Yet section 165 (1) (b) is clear that the judiciary must perform its remit with “reasonable promptness.” And eight years is certainly not the definition of promptness.
In my early years at Tsatse Primary school in Domboshava, I used to enjoy a nursery rhyme that referred to the sound made by sheep. I often topped my class right from my nursery school days. In these formative and foundational years of my education, I often enjoyed the privilege when I was allowed by my nursery school teacher to stand on a wooden desk and lead the class in singing nursery rhymes.
I will not repeat the whole rhyme here but for purposes of this piece, there was a stanza in one rhyme where we sang about a huge flock of sheep that roamed everywhere “on my father’s farm.” It went something like this:
With a ba ba here and a ba ba there ,
Here a ba there a ba
everywhere a ba ba
If I were to change this rhyme to our current predicament as a nation, the rhyme would go:
With illegitimacy here and illegitimacy there ,
Here illegitimacy , there illegitimacy
Everywhere illegitimacy and illegitimacy
There is illegitimacy all round now, especially and particularly in the three key arms of the State. The notion of separation of powers has been severely undermined in this our new era of hallowed illegitimacy. This depicts a serious Constitutional crisis as no afflicted pillar of the State can remedy the illegitimaccy of the other simply because the respective illegitimate pillar itself needs to be remedied first.
A conundrum indeed.
Parliament is illegitimate. The judiciary is illegitimate. The executive is illegitimate. The auction rate is illegitimate. In fact it is a huge fraud. The so-called official opposition that is illegally being allocated funds under the Political Parties Finance Act is illegitimate. The so-called POLAD is illegitimate as there is no dialogue taking place there since all the players there are in total agreement on the key issues. In fact, it’s supposed to be POLAM, the political actors’ monologue it is a forum for a monologue where the parties are lying to the world that they are in a dialogical engagement.
In fact, illegitimacy is now ubiquitous in every strand of the State. Yet legitimacy is a far much higher cardinal beyond even legality. Even if the courts were to eventually validate Malaba’s tenure extension, the man has already lost all legitimacy. The point is legitimacy is greater than legality, just as apartheid as a policy was perfectly legal and embedded in the statutes. But the obnoxious system remained illegitimate and morally reprehensible. Therefore tenures, electoral verdicts and disputes need a far much higher factor in their resolution than legality to attain legitimacy. Legality shorn of legitimacy is empty and at this point in time Mr Malaba does not have both on his side!
The only good news about our crisis is that the executive, the judiciary and Parliament all derive their legitimacy from the people of Zimbabwe. While all the three pillars of the State are now tainted and blighted by illegitimacy, at least the people of Zimbabwe, from whence they all derive their power, remain legitimate and sovereign.
That is why Zimbabweans are now mobilizing for a Citizens’ Convergence for Change (CCC). The citizens need to converge not just for change in the country but to carve out a prudent way out of this maze of full-blown illegitimacy that has engulfed the entire body politic.
At the end of the day, there can’t be an enduring solution to this crisis outside the people in their collective sense. It’s the people who are truly sovereign.
It’s the people stupid!
Luke Tamborinyoka is the Deputy Secretary for Affairs in the MDC Alliance led by the people’s President Advocate Nelson Chamisa . ~You~ can interact with him on his Facebook page or on the twitter handle @ luke_tambo .