Did Mnangagwa’s ‘intervention’ that saw Biti’s release compromise the National Prosecuting Authority office and the Prosecutor General?
The recently held Zimbabwe elections with its official August 2 final announcement remains an unresolved question. This week we learnt that the opposition Movement for Democratic Change Alliance led by Nelson Chamisa appointed a cross-national legal team, to declare the elections null & void. This despite the electoral commission declaring Zanu-PF’s Emmerson Mnangagwa the winner.
The appointing of this twelve-member legal team comprising Zimbabwean, South African and US members seemingly led to the postponement of the inauguration of the Mnangagwa as Zimbabwe’s second president since independence was attained in 1980.
As if that was not enough we learnt that Tendai Biti, former finance minister a prominent and vocal political figure of the MDC, who criticised the Zanu PF leadership was arrested as he attempted to seek asylum in neighbouring Zambia. According to reports Zambia denied him access. He, therefore, was arrested by Zimbabwean authorities following exacted charges on two accounts immanent in “inciting violence” and “pre-empting election results”. His attorney Nqobizitha Mlilo, informed the media that Biti was attempting to cross the border into Zambia when he was arrested.
Clearly, the post-elections environment is not congruent with any claims of stability or a settled situation. What will unfold next will baffle friend and foe. Caretaker and now elected President Emmerson Mnangagwa on his own accord tweeted the following: Tendai Biti was released following my intervention.
In a formal communications world that has changed with US President Donald Trump, who almost singularly relies on twitter diplomacy to communicate local and international policy positions of the US, Mnangagwa knew his tweet would be considered as an official communication. On face value, Mnangagwa may argue that he did not instruct the release of Biti, yet he voluntarily admits, he intervened. We may wonder what a presidential intervention in instances of this nature may look like. We are left to wonder, did Mnangagwa advise or counsel the role players of a judiciary and prosecutor general? Did he lobby them to arrive at a Biti release? Did he instruct these independent spheres of the state to release Biti?
Let us accept that in most claimed democracies political power often plays a role in prosecutions as we have seen with the 17-year-old case of the NPA against former President Zuma south of the Limpopo river. In such we have seen how three National Prosecuting Directors, Advocates Ngcuka, Mpshe, and Abrahams acted as informed by a political interest in arriving at decisions to prosecute or not in diverse epochs in this case. We, therefore, would be fooled to assume a perfect environment of prosecutions in Zimbabwe, yet a flagrant violation of the provisions of the constitution warrants a red flag.
We may have the following assumptions in good faith on the ‘intervention’ of Mnangagwa. That it may be a noble act of leadership on the part of Mnangagwa, perhaps even against Zanu-PF leadership who may have a different mind. We also may consider it a generous attempt at bringing his political enemies to the table. We may even find solace in the fact that Mnangagwa was acting in the interest of the country and citizenry and seeking to work for some form of stability and peace, where post-election violence has claimed over ten lives and left scores injured in the unfolding violence. Some may even consider his act as sincere in an attempt of burying the hatchet between known political foes that hitherto has kept Zimbabwe shackled to a mindless and directionless economy and compromised meaningful life as hoped for in its constitution.
Unfortunately, all the niceties we may attribute to Mnangagwa’s intervention in olive branch attempts cannot stand when we accept Zimbabwe as a constitutional democracy. The founding premise of the nation-state, Zimbabwe is emphatic when it articulates in its preamble the following:
“1. The Republic of Zimbabwe is a unitary, democratic and sovereign republic. 2. Supremacy of Constitution (1) This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency. (2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative and judicial institutions and agencies of government at every level, and must be fulfilled by them.”
This unambiguous position on the sacred place of the Constitution compels a reading of what it means as it relating to the subject of prosecutions as to how that is given effect in society. A constitutional democracy dictates that the constitution and no office or person is sacrosanct in determining life and its meaning in the geographic shared space of Zimbabwe. Since the constitution is the sacred directive of such a secular state though one with a very strong Christian religious expression, we will have to let the constitution arbitrate the actions of Mnangagwa and those who in this season may have in nakedness of defiance of its articulation violated the provisions and what this may mean going forward.
The first challenge then remains, where the power, capacity and authority for prosecutions emanates from and is located. Chapter 13 Subsection 258, on the establishment and functions of the National Prosecuting Authority, reads, “There is a National Prosecuting Authority which is responsible for instituting and undertaking criminal prosecutions on behalf of the State and discharging any functions that are necessary or incidental to such prosecutions. Section 260 on the independence of the Prosecutor General as head of the National Prosecuting Authority delineates, Subject to this Constitution, the Prosecutor-General-(a) is independent and is not subject to the direction or control of anyone; and (b) must exercise his or her functions impartially and without fear, favour, prejudice or bias.”
Right here we learn that Mnangagwa or any president has no constitutional powers over the office of the Prosecutor General since the office derives meaning and effective functioning from its independence and reality as safeguarded by the constitution.
Secondly, the implication of such independence as abundantly afforded in the constitution renders the institution a sacrosanct status in regard to prosecutions. Mnangagwa’s intervention or instruction to the Prosecutor General’s office to have Biti released is, therefore, a flagrant attempt at directing this office on prosecutions or release from prosecutions. Mnangagwa, therefore, firstly compromised and clearly may have also violated the constitution the same by which he hopes to be inaugurated as Zimbabwe’s next president.
This violation of the constitution comes asserted in three-fold form. It can be argued he disrespected the independence of the office, to influence or to have claimed a power over the institution. That claimed power extended him and arrogated right to intervene or instruct what is constitutionally meant to remain an unfettered independent institution. He secondly, also with such intervention or otherwise, counselled and blurred the lines of constitutional mandates and thus denied the office its unique right directly extracted from an articulated provision of the prosecutorial mandate. He also in the third instance may have with his ‘intervention’ violated the constitution in the fact that his office as per Chapter 5, part 2 section 89:1 on the duties of the president, the constitution reads reads, “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. The upholding, defending and obey and respecting of the Constitution extends to the protection, respecting, and upholding of the office of the Prosecutor General as independent and free from interference, influence and directing.”
What then are the deductions and ramifications of his unilateral actions in instructing the office of the prosecutor hold?
The fact that Tendai Biti is today a free man, confirms that the Prosecutor General in absence of regard for the constitution opted to comply with this unconstitutional instruction. For giving effect to this instruction, he joins Mnangagwa in rendering the office suspect and compromised in the fairness of its jurisprudence and normalised ethic.
Since the instruction was honoured, the prosecutor general, equally in lack of appreciation of the clarity of the constitution, becomes complicit to the political mechanisations of Zimbabwe. It is the expressed intent and hope of this office and all others similarly defined in the constitutional diaphragm to defend its right to fulfil its mandate without interference among others marked in being seen to have served or favoured a political interest.
The Zimbabwean constitution is emphatic that the Prosecutor General in fullness of its independence solely presides over the powers to determine the prosecutions in veracity and validity as to only be tested in a court of law where justice imbibes a fair process and one where such fairness is measurable in defendant and plaintiff making a case to let allegations stand or fall.
A further residual implication directly extractable from the exerted arrogated powers of President Mnangagwa, as shown over the independent office of the Prosecutor General, lays in the now clear reality: does this mean Mnangagwa can also instruct this office when he deems it right to a prosecute?
In a normal democracy, certainly the president as a functionary of State power may bring a case against someone, yet that right is not a unique right but one that is common where the proximity of power over and to the office of the prosecuting authorities is never the means to attain a specific outcome for or against someone alleged to have perpetrated a crime.
Are we to deduce that Mnangagwa has with this single intervention captured the office of the Prosecutor General? Shall we rightfully conclude that the incumbent in the office of the Prosecutor General Kumbira Hodzi, may be complicit in having aided the violation of a fundamental principle of what informs prosecutions in a Zimbabwean constitutional democracy? On another level shall the MDC in political expediency accept the instruction on face value as a goodwill gesture at a political level and therefore also be complicit to this violation of the constitution for its clear provisions of the offices of both president and a prosecutor general?
While we may on a political level appreciate Mnangagwa’s actions as in the greater interest of stability, it simply does not stand the demands of the constitutional prerogative and therefore necessitates, beyond claims of a rigged elections, as aided by ZEC, and the pending case to be heard as brought by the opposition MDC, the critical question:
Is caretaker president Emmerson Mnangagwa of the ZANU-PF fit to lead Zimbabwe when he this blatantly can defy and violate the constitution for its clarion details on what the prosecutor general’s office powers mean in independence?
We can expect the saga to deepen, since Mnangagwa may have just lent credence to the claim that his Zanu-PF is not interested in respecting the constitution but to serve their personal political and economic self-interest.
Clyde N.S. Ramalaine
Anchor Political Analyst for AfricaNews 24-7