Operation Restore Legacy, constitutionalism and internationalism

Sharon Hofisi Legal Letters
In November 2017, the Zimbabwe Defence Forces (ZDF) carried out Operation Restore Legacy (ORL) to remove criminals around the former and first Executive President of Zimbabwe Robert Gabriel Mugabe. The protection and promotion of human security was the motivating variable.

Now that ORL has been officially ended there is no doubt that the publicised operation was a landmark in Zimbabwe and beyond its borders. It has become Zimbabwe’s axle towards constitutionalism, internationalism and supra-nationality.

Constitutionally, the future of the essential elements of the Constitution has a strong pivot. The same holds for arguments on internationalism and supra-nationality, which hinge largely on Zimbabwe’s foreign policy, whose new trajectory now includes the gains of ORL.

Unavoidably, the three pillars being discussed in this article revolve around the national and international (loosely used to include bilateral and regional conversations on the future of Zimbabwe). From a constitutional perspective, constitutionalism, the need to adhere to the rule of law according to the highest source of law, ORL has several lessons.

Chief among them is the need to respect the essential features of the Constitution: Preamble; founding values; national objectives and the Bill of Rights. ORL was situated in the need to extol and exalt the values of the liberation struggle as envisaged in the Preamble of the Constitution as well as the founding values that are listed in section 3 of the same Constitution.

It was also carried out by the Zimbabwe Defence Forces (ZDF), one of the security creatures of the Constitution (section 208). ZDF referred approvingly to its constitutional mandate as spelt out in section 212 of the Constitution when it launched the month-plus operation in November 2017. All this is, of course, a matter of fact: even the national courts were called upon to decide on the legitimacy of ORL.

But why protract debate about ORL? In view of the variances and concurrences about the legitimacy of ORL, I have seen no point in discussing in detail what could only have been a clearly settled position at law. At the same time, the print media widely reported about the court decision that legitimised the intervention. An academic critique of the decision may be given in future.

For those who want to have quick notes on the judgment, they can visit ZIMLII, an electronic platform, which captures legal developments in Zimbabwe. Although the court’s discussion has not dispelled arguments around ORL, it is important to note that every writer of a court judgment tries to be accurately mindful of entering into the facts and law of the matter brought before him.

The full judgment is not yet accessible to the public in electronic form, and for the sake of opinions and legal justifications, perhaps the full reasons of the judgment have not yet been given, and when out, critics may provide a nuanced analysis.

Here I deal only with some of the important upshots of ORL — a landmark event as shown above, which came at a time Zimbabwe’s economic meltdown had reached fever pitch. No wonder the operation then dealt with various crimes that are linked to economic management such as corruption, criminal abuse of office and so on.

What matters ultimately is not how we judge ORL, but how the Constitution and its authors — the people of Zimbabwe (I loudly and seriously understand there were drafters) — think about how the essential features of the Constitution can be promoted as we move forward.

ORL showed that there were crimes that were allegedly committed by some individuals. In one way or the other, the crimes affected the human security of the generality of citizens — and by parity of reasoning — ZDF, as a security institution then intervened to protect and promote the citizen’s human security.

Because some people were arrested during the operation, the Bill of Rights in Chapter 4 of the Constitution shows how fundamental human rights and freedoms may be asserted or curtailed. Those individuals who were arrested were granted bail but are yet to be tried in the courts of law. There are several criminal procedures that will still need to be followed depending on evidentiary sufficiency and other considerations.

For now, it suffices to state that ORL was carried out from a security dimension. Other security institutions such as the Zimbabwe Republic Police (ZRP) had to participate in the court processes. The constitutional freedoms and rights of the accused persons are determined in light of the Constitution.

For instance, the guilt or otherwise of those who were arrested is a matter yet to be decided by the courts of law after a full trial. Some of those who were allegedly accused of having committed certain offences are out on bail. Using the pillar of constitutionalism, our Constitution spells out the rights of accused persons. It is an extraordinary statute which is also considered as the primary source of law in Zimbabwe.

Section 70 of the Constitution lists about sixteen rights which guide lower courts and higher courts when dealing with accused persons. At this stage, some of the rights that have to be considered include the right to be presumed innocent; to be informed promptly of the charges; to be given adequate time and facilities to prepare as defence; and to choose a legal practitioner and , at their own expense, to be represented by that legal practitioner.

The presumption of innocence is a time-honoured principle of criminal law, which is meant to protect the liberty of the accused person. It enables the courts of law to decide, together with other factors, whether an accused person is a proper candidate for bail-that surety paid by the accused or his guarantor that he will stand trial or will not flee from the court’s jurisdiction.

The other factors include the seriousness of the offence; the possibility that the accused will interfere with witnesses, evidence or investigations. There are various cases that were determined by our courts of law a long time ago, called judicial precedent, which can be used to show how an accused person can be a candidate for pre-trial release.

Essentially, the presumption under review discourages the accusers or the magistrate, judge or prosecutor from treating the accused person as someone “guilty until proven innocent”. It shuns malicious prosecution and is steeped in other legal axioms such as “it is better that ten guilty men be allowed to go scot free than punish one innocent man”.

You may have observed that some of the accused persons were arrested and brought to court for initial remand. They were subsequently granted bail by the High Court of Zimbabwe, coupled with reporting conditions. They were also allowed to exercise their constitutional rights, including the right to be represented by lawyers of their choice. A caveat has to be placed here: the fact that someone has been admitted to bail does not mean that they have been found to be innocent.

Bail is simply a fundamental entitlement for an accused person. It can be loosely given by the police (police bail) in less serious offences. There are many ways by which the accused person can be admitted to bail. During initial remand, bail may be given to allow the accused person to maintain his freedom pending a public trial.

It can be granted during trial, or while the accused awaits the determination of his appeal or review application. Some in the realm of law-based institutions, academia or any other law-related institution may have been made aware of the fact that “he who alleges must prove”.

In this light, those accused under ORL have to undergo trial so that the veracity of the allegations that are being leveled against them may be tested by the courts — our national arbiters.

From arguments on internationalism, ORL has been legitimised through the courts of law. It is now part of Zimbabwe’s foreign policy. It doubtlessly shapes the corpus of Zimbabwe’s foreign policy principles that are listed in section 12 of the Constitution and include, from the context of ORL, the promotion and protection of the national interests of Zimbabwe.

Essentially, the purpose of ORL was to promote human security and to improve the economic status of Zimbabwe. In this sense, it can be argued that Zimbabwe’s bilateral trade and investment (BIT) agreements must urgently be remodelled to fit this need. We have, in recent days, heard how the world’s economic powerhouses such as the United Kingdom and China would want to engage with Zimbabwe. ORL is part of the normative blueprint in this regard.

Our BIT treaties or arguments must be drafted in a manner that ensures that Zimbabwe has a win-win arrangement with foreign investors and traders. Because a president is usually a chief protagonist in the formulation and implementation of foreign policy, drafters may tap from the pragmatic approach of President Mnangagwa.

We have seen how pragmatism has turned countries like China into economic giants. From a south-south relationship, China used the ‘cat model’ to deal with traders and investors. For China, it did not matter whether the cat is white or black as long it catches the mice. This shaped China’s relations with states and regions. Students of Economic Relations can testify to China’s gains from its cooperation agreements with African countries under FOCAC. This has also been spread to Latin America.

The same can be done with Britain and the United States of America. Landmark events such as Brexit provide economic and constitutional lessons for Zimbabwe. Zimbabwe can now promote its national interests by crafting bilateral relations that mutually benefit Britain and Zimbabwe. There is glitter in that Britain used arguments on State sovereignty to leave the European Union (EU).

For re-engagement with the US, we need to tap from the benefits of Economic Partnership Agreements (EPAs). We also need to use our foreign policy principles to engage constructively with the USA around issues sanctions.

Because our foreign policy also impresses on the need for the State to promote regional and pan-African economic and political cooperation and integration, Zimbabwe can still use ORL to deal with regions such as the EU, and African Union, or sub-regions where conflicts abound.

Added to this, ORL has to be used to tenor the manner in which Zimbabwe participates in peacekeeping or other enforcement operations at regional or global levels. The Constitution states that the State (Zimbabwe) must participate in international and regional organizations that stand for peace and the well-being and progress of the region, the continent and humanity.

In the aftermath of ORL, it is important to note that Zimbabwe has already deployed police officers under ZRP to the Darfur region. This development can be located under our foreign policy, transposed into the gains of ORL. Further, ORL can feed into how international organisations such as the AU and Southern Africa Development Community (SADC) can reorder their initiatives on peace and security. SADC, for instance, lauded ZDF’s mode of intervention which did not get into a coup or unconstitutional changes to government. The AU stood with SADC’s position.

Most importantly, the United Nations (UN) can now use the gains of ORL to conceptualise forms of security such as human security. The UN treats human security as an ’emerging’ concept. For the world to understand this concept with due care and attention, the legitimacy of ORL cannot be ignored.

What was its legal nature or purpose? And as soon as we determine these, other structural concerns on human security crop up: who or which national institution should protect and promote human security? How do they approach it?

Because the military is part of the ideal institutions under the UN model that can protect and promote human security, the question on the approach may need to be interrogated at a global level. ORL has been considered landmark — no bloodshed, no public outcry, no infrastructure damaged and so on.

This is how the world should start on the brooding concept of human security. Zimbabwe’s ORL should be studied as one would any other example of approaches by institutions mandated to promote human security: look at effective ways to protect the human being, and to leave a legacy on such protection. Once this is done, the question “why ORL” becomes superfluous.

ORL created shared values at the heart of a nation that was descending into economic and political turmoil. ZDF had a constitutional mandate to promote security. Military intervention became part of its anticipatory mandates (since its warning was not heeded) and those seized with ZDF’s administrative mandate then announced its commencement and formal end to the nation and the world.

Its commitment to human security is now cast in stone and there is need to embed its sustainable legacy into global concepts. The UN implements normative measures that help the world reduce intrastate and interstate conflicts and increase the need for State responsibility in various areas of human life, while respecting State sovereignty to the State actors.