Speaking in public, in front of thousands of citizens, and on an important national event, Heroes Day, the President made the remarkable statement that his government would not prosecute murderers. He was referring to those white farmers that were murdered during the Fast Track Land Reform Programme:
“Yes, we have those who were killed when they resisted. We will never prosecute those who killed them. I ask: Why we should arrest them?” he said.
This remark seems not to have generated the level of outrage that the assault by his wife of a South African citizen has, and this speaks volumes of how our precious democracy has been eroded.
When Robert Mugabe was sworn in as President in 2013, he undertook to uphold the Constitution as the Head of State. This is not a trivial commitment as can be seen in the Constitution itself.
Section 90: Duties of President
(1) The President must uphold, defend, obey and respect this Constitution as the supreme law of the nation and must ensure that this Constitution and all the other laws are faithfully observed.
(2) The President must—
(a) promote unity and peace in the nation for the benefit and well-being of all the people of Zimbabwe;
(b) recognise and respect the ideals and values of the liberation struggle;
(c) ensure protection of the fundamental human rights and freedoms and the rule of law; and
(d) respect the diversity of the people and communities of Zimbabwe
Note the commitment: uphold, defend, obey and respect the Constitution as well as ensure that Constitution and all the other laws are faithfully observed. To my mind, saying that his government will disobey the law that requires all murders to be investigated, charges brought against those that unlawfully kill, and appropriate punishment meted out, does not sound like any kind of commitment to Section 90 (1). Rather it is explicitly saying that the Constitution and the law will be actively disobeyed.
So what is the consequence of this?
Do we accept this as mere rhetoric? Does it matter if the Head of State gives an explicit statement that he will disobey the law? He was not speaking as Robert Mugabe the man, but as Robert Mugabe, the President of Zimbabwe.
If we look at Section 97 of the Constitution, then it would seem that are prima facie grounds for removing the President from office..
Section 97: Removal of President or Vice-President from office
(1) The Senate and the National Assembly, by a joint resolution passed by at least one-half of their total membership, may resolve that the question whether or not the President or a Vice-President should be removed from office for—
(a) serious misconduct;
(b) failure to obey, uphold or defend this Constitution;
(c) wilful violation of this Constitution; or
(d) inability to perform the functions of the office because of physical or mental incapacity
It seems to me that President Mugabe’s statement is at odds with the Constitution, and he has shown a failure to uphold it by stating that murderers should not be prosecuted. But his fate lies in the hands of our elected representatives, and here the Constitution is again explicit about the duty of elected representatives to uphold it.
Section 119: Role of Parliament
(1) Parliament must protect this Constitution and promote democratic governance in Zimbabwe.
(2) Parliament has power to ensure that the provisions of this Constitution are upheld and that the State and all institutions and agencies of government at every level act constitutionally and in the national interest.
So, will this be passed over as a matter of no consequence, or will Parliament exercise its power of oversight and take seriously a direct challenge to the Constitution and the law of the country?
This, of course, is not the first time that the President has been in breach of the Constitution. In February 2009, he swore in 41 Ministers into the Inclusive Government when the Constitution unfortunately only allowed him to have 31, but was supported, sadly by the opposition in violating the Constitution. The High Court agreed that these appointments were unconstitutional, but defended this on the grounds that to rule these appointments unconstitutional would upset the governing of the country. And it is also clear that the President and ZANU-PF have little respect for their own party constitution as was shown at the 6th National People’s Congress, so constitutionalism is practised more in the breach than the observance. However, condoning murder seems a little more egregious!
I could go on, but the point is made: the President must obey the Constitution and Parliament must make sure that he does. But will anything happen?