Terrence Mawawa|Tapuwa Chitambo, the Secretary General of the Friends of SMM (FOSMM) has called for a shared understanding on Emmerson Mnangagwa’s legitimacy question.

“We have two but not new positions posited by the two dominant political parties, the ruling party, ZANU-PF, led by President Mnangagwa, and the MDC-Alliance, led by Mr. Nelson Chamisa, that President Mnangagwa is the legitimate head of state and government following the 2018 elections whose results were confirmed by the Constitutional Court and the alternative view that challenges this narrative.

Mr. Chamisa supported by Hon. Tendai Biti continue to argue that the only was to legitimize President Mnangagwa’s administration is to form a National Transitional Authority (NTA) and this will presumably be the bridge to prosperity that has eluded many Zimbabweans for far too long.

It is interesting that a demonstration was recently organised and led by the MDC-Alliance calling for the establishment of the NTA and this was before the Senate Foreign Relations Committee (SRRC) held on 6 December at which the issue of the removal of actions was a key focus.

To the government that question of legitimacy is an irritation and unwelcome subject devoid of any legal and constitutional merit.

It is significant that during the week when the ZANU-PF is scheduled to be held, the Herald in its editorial had this to say: “The long and short of it is that the MDC-Alliance leadership is desperate to rig its way into Government after losing the July 30 harmonised elections,” implying that the view held by President Mnangagwa is that unlike was the case in 2008 when ZANU-PF did not enjoy an overwhelming parliamentary majority, there is basis for any alternative to a ZANU-PF led government.

Against a background of a myriad of social and economic problems, there is no agreement as to the cause of these challenges. According to MDC-Alliance representatives, the economic problems are a direct result of the legitimacy question whereas according to ZANU-PF representatives, the problems directly flow from sanctions imposed by the Western Nations.

To what extent are the problems that have visited Zimbabwe for the last two decades a consequence of external or internal reasons, is an issue that has now become overly politicised.

The question by Standa Sani below that: “Is a government fit for purpose and worthy of respect when it cannot defend and uphold the rule of law?” is a poignant one because it speaks to a fundamental problem that goes beyond the legitimacy question.

It is self-evident that the legitimacy question will never be resolved as it does not appear that Chamisa will accept that President Mnangagwa won the 2018 elections and likewise President Mnangagwa will never accept that he did not win the elections.

One would have expected the debate to move from the legitimacy test to the fit to govern test.  Regrettably, the legitimacy question plays into the hands of President Mnangagwa.

As a member of FOSMM, I have learnt that there is a link between the rule of law and constitutionalism with prosperity.

Notwithstanding, there is a serious deficit in the country in terms of domestic leadership on rule of law matters. We seem to be bogged down on the legitimacy question yet common sense would dictate that we test the commitment of President Mnangagwa to the rule of law with specific case studies outside his comfort zone of electoral triumph.

In South Africa, it is significant that minority political parties like the EFF and the DA did successfully dislodged former President Zuma from power by exposing his failure to uphold the rule of law and constitutionalism.

It would have been foolhardy for these minority parties to challenge President Zuma on legitimacy grounds but on his conduct as the President of a constitutional state.

What lessons should we learn from the Zuma affair? We all know that Zuma had the majority in parliament and in the party. It was also clear that a direct attack on his legitimacy without exposing the implications of the Nkandla affair to the generality of the South African public, it was unlikely that an implosion within the ANC could occur without an external push.

In 2014, I wrote a letter to then Vice President Mnangagwa on behalf of FOSMM, to seek his intervention on our call to have the Reconstruction of State Indebted Insolvent Companies Act repealed because it belongs to a class of laws that are so offensive to the rule of law.

He confirmed that he had constructive knowledge that the mines were reopened after the government had won 22 out of 23 litigation cases based on the existence of a law that allows the rights and freedoms of shareholders and directors to be divested without the knowledge and involvement of the courts.

The question that should arise is whether President Mnangagwa having taken an oath to promote, protect and uphold the Constitution can be deemed to be fit for purpose if he is involved in enforcing a law that does not pass the constitutional muster.

The existence and operation of this law does a long way towards defining who we are as a nation. This is not about winning or losing an election but about the exercise of public power and the morality expected from the President as the head of state.

If this law exists and the President sees no evil in it, then how many similar laws exist that undermine the rule of law?

Who would be safe against when laws of this nature exist?”

Dr Daniel Shumba, who was a Presidential candidate in the 2018 elections after his unprocedural dismissal from ZANU-PF, said: Lord Cross of Chelsea in the British House of Lords famously held: “a law of this sort (like the Recon Act) constitutes so grave an infringement of human rights that the courts of this country ought to refuse to recognise it as a law at all.”
He further said: “This is a penal and confisticatory law that no President of a constitutional democratic state should recognize and seek to enforce. The fact that this law exists says a lot about President Mnangagwa’s own problems with constitutionalism
No investor will put his money when the highest office in the land sees no evil with a law that tramples on the bills of rights enshrined and entrenched in the Constitution.

It is not surprising, therefore, that on 19 November 2018, the Attorney General, Mr. Prince Machaya, stated that this law is not only constitutional but an extrajudicial order issued by the Minister of Justice is akin to a judicial order that only a Court of law can be grant.

With a boss like President Mnangagwa, clearly anything goes.”

Mr. Chitambo concluded by saying: “The need for a shared understanding on what time it is cannot be understated. It is clear that it is not time for asking the legitimacy question but to ask questions about troubling governance and rule of law questions. We need to converge as a nation on what matters and not on what divides us. The legitimacy question will never see us in one tent asking for accountability of public office bearers to us the citizens.”