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.