The 'separation of powers' doctrine revisited

The 'separation of powers' doctrine revisited

• Last conversation with Nathaniel Manheru

• Roy Bennett and the new Zimbabwe we seek

• The promise and challenge of a new Zimbabwe

• Your country needs you!

• The Obama Factor in African politics

• Zimbabwe: banana republic or casino economy?

• My Zimbabwe and my Africa

• Who really controls post-colonial Africa?

• My lessons in post-colonial injustice

• Zimbabwe on road to nowhere

• The moral vacuity of Mugabe's Obama embrace

• Bridging gap between land ownership and economic progress

• Unholy alliance forms around KMAL carcass

• Unpacking the cabinet talks stalemate

• Chanakira: the unlikely foot soldier for expropriation schemes

• A conversation on nation, nation state and nationalism

• Mbeki is victim of a culture he helped create

• Towards a new Africanm identity

• Where is Zimbabwe's Obama?

• Power sharing versus power transfer

• Business has role as change agent in Africa

• Interrogating Ownership in Africa

• Actors might change, but Zimbabwe plot stays same

• The world according to Mandela and Mugabe

• Mugabe needs incentives to reform, not sanctions

• The agenda for change post-Sharm El-Sheikh

• What is the meaning of independence?

• Has Mugabe's war bluster won it?

• Imperialism no threat to organised people

• Mugabe using language of xenophobes

• SA's BEE project intersects with xenophobia

• A Rainbow Nation without black

• A post-election conversation with Mugabe

• Doubts aside, Tsvangirai now best bet for a New Zimbabwe

• African mines remain theatres for foreign operators

• Mugabe's self-help constitutional order

• The New Zimbabwe is almost upon us

• Zimbabweans have spoken, and the message is in the detail

• Mugabe's re-election would be disaster for private enterprise

• Zimbabweans at the polls: the great debates

• Change cannot wait for Madhuku's post-election ambitions

• Voting for change in Zimbabwe

• Can an independent win in Zimbabwe? Yes he can!

• Makoni: puppet, Zanu PF agent or national hero?

• Who is behind Makoni? Please count me in!

• Obama v Billary Clinton: lessons for Africa

• If Zuma is corrupt, who isn't?

• Charamba gives civil service a very bad name

• Be the change that you want to see

• The paradox of African liberation and change

• Zimbabwe and the Jacob Zuma factor

• The EU-Africa relationship post-colonialism

• Beyond Lisbon: setting the African agenda

• Implications of Zuma winning ANC presidency

• Africa's enduring economic apartheid

• Does indigenisation threaten law of succession?

• Defining the role of the State in post-colonial Africa

• Mushore's ordeal and the Zimbabwe we want

• Does rule of law pose a threat to Africa?

• Capitalism may challenge the poor, but it gives them hope

(www.mmawere.com)
Posted to the web: 02/03/2009 09:01:37
PRIME Minister Morgan Tsvangirai has been under fire for writing to the High Court offering himself as surety in Roy Bennett’s bail application who is facing charges of possession of firearms.

The fire came from even the most unlikely sources that believe that he erred in intervening in the matter and his actions represent a serious infringement on the separation of powers doctrine.

Tsvangirai is now a member of the executive and people who hold the view that he should not have used the words: “it is imperative that Bennett is granted bail…” believe that this sets a bad precedent for a person that has won world acclaim for challenging the undemocratic post-colonial order.

The Jestina Mukoko, Mudzingwa and Bennett cases have provided Zanu PF and President Mugabe with a unique opportunity to test the democratic credentials of the new players in the executive branch. The allegations against MDC activities are purely political and relate to alleged conduct of the accused in the pursuit of the change agenda.

As expected, President Mugabe has refused to intervene in these cases arguing that it would be irregular for the executive to interfere in matters that can be adjudicated competently by the courts.

In holding this view, President Mugabe relies on the doctrine of the separation of powers that divides the institutions of government into three branches i.e. legislative, executive and judicial with the legislature responsible for making laws, the judiciary for interpreting the laws and the executive for putting the laws into action.

After 29 years of independence, it has been widely accepted that the doctrine had no application to Zimbabwe’s post-colonial experience. The state and ruling party were so embedded together that it was not possible for power to be divided.

The expected independence between the three branches of the government has not been realised and, if anything, the manner in which the recent constitutional amendments have been negotiated and processed exposes the lack of checks and balances in the constitutional order.

The inter-party talks were held in secrecy and yet when agreements were reached, it was possible for the legislation to be railroaded through parliament with little or no amendments. The critics of Tsvangirai’s intervention were silent when the resolution of the political crisis was taken out of the very institutions that are charged with protecting the constitutional order.

One would idealistically have rationally argued that it was up to the Zimbabwean courts to resolve the political differences and the disputes that arose from the elections. However, all the contesting political actors came to the realisation that extra-judicial interventions were necessary given the politicisation of the state institutions.

There is no single judge who sits on the bench today who was not appointed by the ruling party starting with the current Chief Justice who was an active member of the party as well as a former member of the executive branch of government. At independence, it was accepted that crimes of a political nature required political solutions.

In the case of the MDC prisoners, it must be accepted that the recent changes in the composition of the cabinet has not changed the character and orientation of the police, judges, and the prosecuting authorities to give confidence to anyone that justice will prevail.

With respect to Bennett, the decision to go back to Zimbabwe from the relative safety of South Africa must have been a difficult one and there is no doubt that behind the scenes there were assurances given that he would be safe.

Tsvangirai’s decision to nominate Bennett as a Deputy Minister in President Mugabe’s government fully knowing his position on the land issue appears to have precipitated his arrest. If Tsvangirai was involved in persuading Bennett to return to Zimbabwe, then one can understand his predicament.

By offering himself as surety, I have no doubt that Tsvangirai must have applied his mind on the consequences. What should Tsvangirai have done? He has no power to have the prisoners released. President Mugabe’s position on Bennett and the other prisoners is already known. He also believes that a regime change plan was in place with Bennett as one of the key participants.

President Mugabe must have known from the day Bennett’s name was put forward as Deputy Minister of a sensitive ministry like agriculture that preemptive action had to be taken and in so doing force the hand of Tsvangirai to act. Tsvangirai had essentially two options i.e. one to decide to withdraw from the inclusive government until the release of the prisoners or request the intervention of SADC in the matter. He chose to ask President of South Africa to intervene to no avail.

If Tsvangirai were not in government, the choice would have been clear in terms of responding to Bennett’s bail application. By placing Tsvangirai in an invidious position, President Mugabe has managed to expose him as acting in a manner that any Zanu PF actor would ordinarily act.

By using Bennett as a test case, President Mugabe must have relished the prospect of exposing the link between white farmers and MDC. It was not surprising, therefore, that President Mugabe used his birthday celebrations on Saturday as an opportunity to send the message that if by appointing Bennett as Deputy Minister of Agriculture there was any notion of a policy reversal on land reform, it was misplaced and mischievous.

To President Mugabe, the Bennett issue has little to do with the actual charge sheet but with what he perceives to be the bigger agenda of the West to use the MDC in the context of the inclusive government to reverse the gains of independence. Until Tsvangirai publicly embraces the land reform programme and commits to its irreversibility, it is unlikely that any white friend of MDC will ever be allowed back into agriculture.

Some have accused Tsvangirai of putting his personal interests ahead of national interest. However, Bennett’s case is more complex in that he is a senior member of the party and he has been targeted precisely because of his political activities.

For the last 10 years, Zanu PF and MDC have been political contestants for state power and, therefore, the nature and content of the conflict did not amount to actions against the state especially if the question of political legitimacy that has dogged the government over the same period is taken into account.

If one accepts that the state has been Zanufied in its entirety, then it is important that the actions of Tsvangirai are understood in context in as much as it has been accepted that the inclusive government, if properly understood, poses a more significant threat to the democratic constitutional order than Tsvangirai’s actions. However, it has been generally accepted that the inclusive government with all its imperfections and contradictions does provide an exit route to the crisis.

On October 2, 2006, I wrote an article entitled: “The making of an Imperial President” in which I argued that Zimbabwe, unlike many African countries, is lucky in that the founding fathers of a post-colonial state are still in power and they can still be subjected to the democracy test having endured in one lifetime the undemocratic practices of a colonial state and privileged to lead the formerly disenfranchised into what was expected to be a democratic dispensation. It is never too late to have a conversation with President Mugabe about what kind of Zimbabwe he wanted to see after 29 years in power.

Is he satisfied that the Zimbabwe of today that would lead a Prime Minister of a post-colonial state to act in the manner he did is what he fought to create? Who really should be accountable for Tsvangirai’s conduct? Should Tsvangirai quit the inclusive government until the conditions are ripe for taking the country forward?

I think it is important for the MDC to remain engaged in the inclusive government and if it means embarrassing the government through letters to the judiciary, then so be it.

In conclusion, I cannot but help to quote again Supreme Court Justice William O. Douglas of the US who said: "As nightfall does not come all at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is such twilight that we all must be most aware of change in the air - however slight - lest we become unwitting victims of the darkness."

The beginning of the end may be confusing after a long period of oppression but we must be aware that change is already in the air and it is irreversible. The hungry stomachs in Zimbabwe could care less about the hand that produces the maize than the availability of food. At this defining hour, it will not advance the Zimbabwean cause to talk about the irreversibility of land reform while accepting that the reforms have failed to deliver the goods.

Mutumwa Mawere's weekly column is published on New Zimbabwe.com every Monday. You can contact him at: mmawere@global.co.za
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