By KEN SIBANDA
[Extract from briefing to United Nations Secretary General Antonio Gutterres delivered by Ken Sibanda Esq]Dear Sir:No grievance can justify the unconstitutional removal of a government, even if it’s Mr. Mugabe on the receiving end on the basis of the principle of “one man, one vote.” In addition, the coup is not a popular uprising charged against Mugabe’s misrule, but it is a grievance on the removal of one faction, Vice-President Mnangagwas', in a bitter succession battle.Chiwenga’s army did not intervene when people disappeared, when people were massacred in Cheidzwa and Matabeleland, but within a week of Mnangagwa’s sacking suddenly Mugabe was removed? As recent as two weeks ago Army Generals in Zimbabwe gloated over their new-found powers under the Cyber Act. As an extension of this law an American citizen, Martha O'Donovan was recently arrested, for a twit against Mugabe as an example that the new Cyber law will be enforced.In this current impasse, the only constitutional path forward for a lasting solution of peace and security in Zimbabwe is an emergency election, within three months, monitored by the United Nations – United Nations Integrated Mission for Zimbabwe (UNZIM).This viable solution could perhaps give rise to a new start for Zimbabwe and address regional peace and security concerns – the biggest of which, is the demilitarization of politics in Zimbabwe.The United Nations (UN) was precisely created for this sought of situation under its Charter: that when a country reaches an impasse and needs a neutral mediator to assist it the United Nations uses its good offices to do so. Invitations to the United Nations have not yet been dispatched but this does not mean the UN cannot act independently and use its good offices.This emergency election supervised by UNZIM would allow for the rule of law to slowly return in a credible manner. As for Southern African Development Community (SADC) and African Union (AU), they no longer have credibility to mediate because of their initial refusal to address Zimbabwe's instability caused directly by Mugabe holding onto power. Only President Khama of Botswana has been consistent in asking Mugabe to relinquish power to a younger leadership.In addition, a Tribunal, as part of UNZIM needs to be established to investigate Mugabe's human rights record that includes Matabeleland Massacres, Murambatswina Massacres, Chiedzwa Diamond Massacres, the death of Rex Nhongo, and disappearances of many - including Itai Dzamara; some of which directly implicate Chiwenga’s army. This would allow for the new country to address issues of transitional justice.The message in Zimbabwe should be that the rule of law is supreme, and the constitution is the only instrument that transfers power, through the ballot not the bullet in Zimbabwe, and any region in Africa. The threat of the bullet to one’s head is equally insidious. The lessons from Africa are that when an army gets involved it’s not the beginning of democratic rule but the beginning of autocratic misrule. How else does one explain the arrest of “political criminals,” who are criminals even before they have stood trial and offered testimony in their defense. Due process requires two sides and a neutral judge to determine the outcome. One’s right to disagree in the political sphere does not make them a criminal regardless of how ill-advised their involvement might be; as such no army has a right to arrest dissenting citizens as a recourse-of- sought without a criminal charge citing the appropriate statute violation. As you know, the proper term for this is: held incommunicado.
Ken Sibanda, is a South African born American Constitutional and human Rights lawyer. He is President of – Institute for Peace and Justice in New York, and author of International Law: Peace Accords.