Why did it take so long? Part of the explanation can be found in Zimbabwe’s constitutional and institutional design.
Even an authoritarian government can follow a constitution
Zimbabwe has not functioned like a democracy for a long time. But its political institutions are designed specifically to protect and preserve democratic participation. While his rule was brutal and his government frequently violated its citizens’ human rights, Mugabe’s edicts were always issued according to the constitution, by passing laws. In 2005, for example, when the government instituted the brutal Murambatsvina operation, which left nearly 700,000 homeless, it was done legally, following a parliamentary debate.
The military had no constitutional authority for its intervention
After independence, most African leaders dumped the British parliamentary system for a hybrid presidential-parliamentary system, which consolidated power around the president with very few checks and balances. As the commander in chief of the Zimbabwe defense forces, Robert Mugabe was the only person with the authority to command the military. As a result, Mugabe had the standing to challenge the legality of the military’s intervention in what it insisted wasn’t a coup.
The generals do not have the constitutional mandate to arrest civilians; despite their insistence that the military was merely intervening to get rid of criminals around the president, their actions were illegal and violated the Constitution.
What’s more, even if the military could justify its arrests as a national security emergency, the Zimbabwean Constitution section 50(3) requires prisoners be brought before a court within 48 hours of arrest. That has been important over the past decade and a half, as the Zimbabwean government has used the judiciary and police to arrest activists speaking against the government. Section 50(3)’s important clause saved popular activist Pastor Evan Mawarire in July 2016 from being disappeared, after he was arrested and accused of treason and attempting to overthrow the government. Mawarire was freed after the courts threw out his case, declaring his arrest unconstitutional.
The same laws that saved individuals unfairly arrested by the government will now save ZANU-PF officials like Jonathan Moyo, who publicly acknowledged abusing government funds. If it is true that they were illegally detained, any charges against them will have to be dropped.
In other words, when at first Mugabe refused to resign, he was attempting to exercise his constitutional authority as the only person who could deploy military forces to charge the generals with treason. Since the generals do not have immunity, they may wish to work out a deal with the president that absolves them from prosecution for crimes committed over the last week. Political loyalties are fickle. There is no guarantee that the next president — even one they help put into power — will not bring up these charges should there be a later falling-out. In fact, the next president might use such threats to bolster presidential powers even more.
Constitutionally, what happens now?
There were two constitutional options possible for Mugabe’s departure. He could resign by writing a letter to the speaker of parliament, which is what he did. The more drawn-out alternative, already underway when Mugabe submitted his resignation, was impeachment, which would have required a vote of two-thirds of the total membership of both houses of parliament.
After his resignation, according to the constitution’s section 101, his successor is Vice President Phekezela Mphoko, currently out of the country. But the leading ZANU PF faction, backed by the military, prefers recently ousted Emmerson Mnangagwa, who does not hold an executive position. So what will they do? The 2013 Constitution would allow the party to replace Mphoko as president within 30 days through ZANU PF’s internal nomination process; after an individual has been nominated for party president, that nomination must be confirmed at the party’s congress. ZANU PF already nominated Mnangagwa to be party president, which would put him into office as president — but first Mnangagwa must be confirmed at the party congress, scheduled for this December. However, it looks as though some of these requirements will be suspended as ZANU PF rushes to install Mnangagwa as president.
Parties do not have authority to recall a vice president. Thus, for now, Mphoko remains interim president until Mnangagwa’s swearing-in Nov. 25. After that, his fate will be decided by Mnangagwa.
Chipo Dendere is a visiting assistant professor of political science at Amherst College whose research is on African politics, democratization, migration and voting behavior in the developing world.