Mnangagwa vs. His Oath – Exorcising the Demon of Recalls: Can the Constitution Be Its Own Weapon?

The specter of recalls has loomed ominously over Zimbabwe’s political landscape since 1980, transforming what was a promise and could have been a tool for citizen empowerment into a weapon wielded by the powerful against perceived enemies of the state and for personal aggrandizement.

The recent recall of CCC members, driven by a questionable, arbitrary, capricious, malicious, scandalous, and irrational interpretation of the Constitution, stands as a stark example of this dangerous trend.

The Genesis of the Problem: Land Reform and Recalls

The origins of this predicament can be traced back to the land reform program, where recalls were first employed to expel white farmers labeled as beneficiaries of an unjust system.

Despite contested claims of serving the public interest, the argument that “expropriation without compensation” aligns with the Constitution became a lasting justification.

This constitutional pretext, initially used to justify the removal of a specific group, has now become a shield for potential future abuses.

The demon of recalls, once unleashed to reshape the land, has returned to devour the very essence of Zimbabwe’s democracy.

The challenge at hand transcends the immediate need to halt a specific recall; it requires the exorcism of this demon from the political fabric of the nation.

Can the 2023 Constitution, manipulated against itself, become a weapon to dismantle this perilous tool?

It is instructive that s. 2(1) and s. 2(2) that provide for the supremacy of the constitution read:

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.

It is also instructive that the President whose duties are prescribed in terms of s. 90(1) as read with s. 90(2)(c) is not above the law as the framers of the 2013 constitution entrenched and enshrined an impeachment weapon in it in terms of s. 167(2)(d) and s. 167(3) that has only been used once by Professor Tichaona Mupasiri, an activist of note, who in the application he launched under Case Number CCZ34/21 sought the Constitutional Court, the court vested with exclusive jurisdiction to hear and determine the failure by the President to fulfill the duties prescribed in his oath, but the Malaba-led apex court was waiting at the gate to protect the President from being held to account for his knowledge and involvement in the recall of a private company, SMM Holdings Private Limited, SMM, whose control and management was savagely divested and deprived of its shareholders and directors without any due process of the law preceding the savagery.

Significantly, using the agency of the firm, DMH Attorneys, President Mnangagwa, under oath, was forced to admit that he was the driving force and mind behind this recall in broad daylight with impunity, even under the watch of Mugabe, who, based on the facts exposed in the Mupasiri applications, was a mere titular president, with Mnangagwa playing the role of the de facto president, albeit unelected, untouchable, and unaccountable.

Strategies for Exorcism:

1. Exposing the Legal Flaw: A meticulous legal analysis of the recent recall is paramount. Dissecting its adherence to constitutional principles and established procedures can delegitimize the recall and act as a deterrent against future misuse. AI-powered legal research can offer invaluable insights and strengthen the argument against the recall.
2. Strengthening Constitutional Safeguards: The Constitution itself must be fortified against manipulation. Amendments to recall clauses, clarifying triggers and procedures, and introducing judicial oversight can enhance safeguards. Inclusive and transparent public engagement during constitutional reform processes ensures amendments genuinely reflect the will of the people.
3. Building a Culture of Constitutionalism: Beyond legal frameworks, a societal shift towards respecting and upholding the Constitution’s spirit is necessary. Civic education programs, fostering critical thinking and engagement, empower citizens to defend the Constitution against abuse.
4. Harnessing the Power of Public Opinion: The international community and Zimbabwean civil society must raise their voices against recall misuse. Global scrutiny, driven by exposing democracy and human rights erosion, can apply pressure on the government. Social media campaigns and targeted advocacy amplify the message within Zimbabwe, mobilizing public resistance.
5. Strategic Litigation: Challenging the recall through the courts, even with uncertain immediate outcomes, sends a powerful message. It demonstrates a commitment to legal recourse and keeps the issue alive in the public eye. AI-powered legal research and argumentation can strengthen these legal efforts.

Charting a Course for Justice:

The road ahead is fraught with challenges, for exorcising the demon of recalls is no easy task.

Yet, by wielding the very tools it seeks to exploit—the Constitution, public opinion, and strategic action—there is potential to push back against this dangerous trend. It is time to reclaim the instrument of recall for its intended purpose: a tool for the people, not a weapon for the powerful.

The era of silence must come to an end. Let voices rise, hands join, and together, let us exorcise this demon from Zimbabwe’s political landscape. May the Constitution cease to be a shield for abuse and, instead, become a sword for justice.

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