Con-Court asked to rule on legitimacy of 'coup'

HARARE - A civil society activist Bongani Nyathi has approached the Constitutional Court (Con-Court) challenging the army’s intervention last November, which led to former president Robert Mugabe’s resignation.

The army led an exercise code-named Operation Restore Legacy that ousted 94-year-old Mugabe, one of the world’s longest serving dictators, in a bloodless takeover.

In the court application, Nyathi is seeking to be granted direct access to the Con-Court.

He cites President Emmerson Mnangagwa, his deputy Constantino Chiwenga, commander of the Zimbabwe Defence Forces (ZDF) Phillip Valerio Sibanda, Speaker of the National Assembly Jacob Mudenda and Mugabe as respondents.

According to the papers first filed on May 18, the ZDF’s intervention under Chiwenga’s leadership violated the country’s Constitution, he argues.

In his heads of argument filed on Monday, Nyathi said he wanted the Con-Court to allow him to present his case and question Mudenda’s silence, despite his realisation that the army’s actions violated the Constitution.

“The main issues for determination are the constitutionality of actions or behaviour of the members of the Zimbabwe Defence Forces under the stewardship/command of second respondent (Chiwenga) during the period from November 13, 2017 leading to the resignation of fifth respondent (Mugabe) from the office of President of Zimbabwe,” Nyathi said.

Nyathi also told the court that the constitutional provisions at stake are Sections 110 (1) and 208 of the Constitution.

“Section 110 (1) of the Constitution provides as follows: the president has the powers conferred by this Constitution and by any Act of Parliament or other law, including those necessary to exercise the functions of the Head of State…(g) Deploying the Defence Forces.

“Section 208 of the Constitution provides as follows: Conduct Of Members Of Security Services (i) (1) Members of the security services must act in accordance with this Constitution and the law… (ii) (2) Neither the security services nor any of their members may, in the exercise of their functions-(a) act in a partisan manner; (b) further the interests of any political party or cause.”

According to Nyathi, Chiwenga’s action was a violation of Section 213 of the Constitution.

He also said Mugabe’s freedom to conduct executive functions was taken way by Chiwenga’s deployment of the military which resulted in Mugabe’s confinement to his private residence.

The matter is yet to be set down for hearing.

Comments (8)

why go to the courts and challenge the legitimacy of the Mnangagwa regime when the people of Zimbabwe are the ones who legitimized it? what is the purpose of a constitution if i may ask? Chapter 1 and the preamble of the supreme law clearly state it is for the protection of the hard fought independence and reaffirming and defending Zimbabwean rights and freedoms. Now to the matter at hand you say sections 208, 110 and if i may add 213 of the cons were subverted or not fully adhered to, but the events of 18 November 2017 Speak more for the Zimbabwean people than any shred of legislation will ever do, jean jaques rousseau says "man is born free but everywhere he is bound in chains" well the chains were definately unshackled on Nov 18, thousands took to the streets, MDC, ZANU PF,Civil societies and the general populace showing their approval of the military intervention. A constitution is meant to protect and forward the interests of the people, where the Government derives its mandate, and the peoples will surpasses any law, provision or Act of parliament, in short the people of Zimbabwe legitimized Mnangagwas asention

Anonymus lawyer - 7 June 2018

He (Nyathi) will lose the case with costs. Robert Mugabe resigned to pre-empt impeachment. The party he belonged to throw him out as First Secretary. The same medicine your godfather meted out to the late Reverend Ndabangini Sithole Who ever is paying you in NPF has more money than brains! Where were you?

Mufaro Sibanda - 7 June 2018

www.mamavuka.co.za

prof vuka - 7 June 2018

So now its the con-court to decide on the legitimacy of Mnangagwa? Is it not the same con-court that legitimatized Mugabe when he lost the elections in 2008? Why do we still have people who want to our country backwards? Wether Mnangagwa is legit or not is not the issue right now, only two things concern us as a country, 1st the removal of Mugabe and 2nd a free and fair election in July. Please Mr Nyathi or whoever you are, withdraw your application and use those resources to make sure we are provided with a free and fair election. That is the only way to find out if Mnangagwa is legit or not!

legosta - 7 June 2018

This is waste of time, what happened in Nov 2017 was long overdue. Goblin had to go. Have you ever heard of something called "popular uprising" or "poplar coup" if you like. It was all Zimbabweans who ushered in the new dispensation

seku Tawo - 7 June 2018

the question is what is this person trying to achieve, bring mugabe i suppose

Mukwirividi WaMazungunye - 7 June 2018

To some extent I support with Nyathi,After the uprise,the army should have handed over to the acting president then or to the speaker of parliament who would have run the country for 90 days and proclaim an election date.So that was not the case.The uprising was by the people and instead of going back to the people.Instead the army handed over power to a fired vice president meaning the people who had uprose had no hand in giving Mr.Munangagwa power to run the country.By such the army chose who to give the presidency and not the people

kanny - 7 June 2018

thank you kanny for not being ignorant on constitutional matters

G40 - 8 June 2018

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