A Human Rights Perspective On The 2020 Parliamentary Coup In Zimbabwe

A Human Rights Perspective On The 2020 Parliamentary Coup In Zimbabwe Presented by: Dr. Chengeta Date: 20 January 2021 WHAT'S OUR PAPER ABOUT? WHAT'RE THE ISSUES? - ISSUE 1: Where there are clashing interests, particularly, that of internal democracy of a political party on one hand, and fundamental human rights provided for in the national constitution on the other, the latter should take precedence. Privileging internal democracy of political parties over the fundamental human rights guaranteed in the national constitution is what we're calling sacrificing the soul in a bid to save a toe. Further, the paper seeks to show that in the removal of Movement for Democratic Alliance Members of Parliament, Councilors and Mayors, there was no faithful application and interpretation of the relevant law by the Supreme Court, the Speaker of Parliament, the President of the Senate and certain politicians. - ISSUE 2: Seeks to show that the current Zimbabwean law on the removal of Members of Parliament privileges political parties (rights of juristic persons) while prejudicing voters (rights of natural persons) and other foundational principles of the Constitution. In that sense, the law per se, (by or in itself) sacrifices the soul in a bid to save the toe. This is exemplified through a comparative analysis of the Zimbabwean law to other jurisdictions. Issue 1: Sacrificing The Soul To Save A Toe - A) Unfaithful interpretation & application of the law by courts, speaker of parliament, president of senate, Khupe & co. • SECTION 129 (1) (Κ)  "The seat of a Member of Parliament becomes vacant if the Member has ceased to belong to the political party of which he or she was a member when elected to Parliament and the political party concerned, by written notice to the Speaker or the President of Senate, as the case may be, has declared that the member has ceased to belong to it." • PARA 16, GENERAL COMMENT 25 ON ART. 25 OF ICCPR  The grounds for removal of elected officials must be fair and should incorporate fair procedures. - B) Internal democracy of political parties v. constitutional rights • Importance of internal democracy of political parties  Para 26 of General Comment 25 on Article 25 of ICCPR: "Parties play a significant role in election process. States should ensure that in their internal management, political parties respect the applicable provisions of Article 25 in order to enable their citizens to exercise their rights thereunder." • Primacy of right to vote as provided for in the Constitution, ACHPR, ICCPR and other international instruments  The details of internal procedures of political parties are provided for in private agreements while the above-mentioned rights are constitutionally guaranteed - supremacy of the  Constitution. Rizo and others versus Bulgaria: "The right to vote is not confined exclusively to the acts of choosing one's favorite candidates in the secrecy of the polling booth and slipping one's ballot paper into the ballot box. It also involves each voter being able to see his or her vote influencing the make-up of the legislature...to allow the contrary would be tantamount to rendering the right to vote, the election, and ultimately the democratic system itself meaningless." See also para 19 of General Comment 25 on Article 25 of ICCPR - "results of genuine elections should be respected and implemented."  Yabloko Russian United Democratic Party and others versus Russia: Any conditions imposed - including those that relate to a party's compliance with its own charter and internal procedures "must not thwart the free expression of the people in the choice of the legislature in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage." Article 17 of the African Charter on Democracy, Election and Governance: Principles of democratic election apply before, during and after elections. • Primacy to freedom of association as provided for in the Constitution, ACHPR, ICCPR and other international instruments  Refah Partisi and Others versus Turkey: "Political parties are a form of association essential to the proper functioning of democracy. In view of the role played by political parties, any measure taken against them affects both freedom of association and, consequently, democracy in the State concerned."  Modzimure Case: Candidates are voted for "not because of his or her merits, but because he or she [was] put forward by the party for which the elector desire[d] to vote... The impression which his or her political party creates in the minds of the electors. They vote for or against the party to which he or she belongs." - C) Parliamentary Coup: Unconstitutional Change Of Government? • The rule on prohibition of unconstitutional change of government: Focus on executive  Lomé Declaration of July 2000, Art 28E of The Malabo Protocol, Article 23 of the African Charter on Democracy, Election and Governance: The following definition of situations that could be considered as situations of unconstitutional change of government: i) military coup d'état against a democratically elected Government; ii) intervention by mercenaries to replace a democratically elected Government; iii) replacement of democratically elected Governments by armed dissident groups and rebel movements; iv) the refusal by an incumbent government to relinquish power to the winning party after free, fair and regular elections v) Certain amendments to the constitution vi) Change of electoral laws on the eve of election. • Potential to expansively interpret the rule and apply it to other branches of government  The current definitions of unconstitutional change of government only focus on the executive - the importance of equally strengthening the legislative branch of the Government from unconstitutional change of government. Democracy is well served by strong institutions - The case of Donald Trump failing to subvert an election because of a strong legislative arm of the government. - D) Remedies • Remedy as a human right  Velasquez Rodriguez v Honduras, UN Declaration of Basic Principles of Justice for Victims of Crime and abuse of power. The importance of providing remedy to violation of right to vote - the potential impact on the next elections? • Previous & current challenges to expulsions of MPs focus(ed) on politicians not voters  The Constitutional Court cases on removal of MPs in Zimbabwe particularly, the 2015 Madzimure case the 2015 Mutasa case and the 2018 Khupe case - did not necessarily concern allegations of violation of the right to vote of the ordinary man but the rights of the politicians concerned. • Potential to find remedies in regional and international fora  The African Commission on Human and Peoples' Rights; the UN Human Rights Committee - currently considering a case concerning the right to hold elected office. Netherlands Case, communication Number 3650/2019.