Former University of Zimbabwe Political Science lecturer Jonathan Moyo said that the appointment of the Commander Defence Forces (CDF) General Phillip Valerio Sibanda as an ex officio member of the ZANU PF Politburo is neither unconstitutional nor unlawful. Moyo wrote on X:
… there is in fact nothing from a literal reading or interpretation of section 208 of the Constitution which invites or leads to a conclusion that General Sibanda’s appointment to the ZANU PF politburo is unconstitutional by definition…
Here is why.
Firstly, it is important to have regard to the all-important section 67 of the Constitution which provides as follows:
67 Political rights
(1) Every Zimbabwean citizen has the right—
(a) to free, fair and regular elections for any elective public office established in terms of this Constitution or any other law; and
(b) to make political choices freely.
(2) Subject to this Constitution, every Zimbabwean citizen has the right—
(a) to form, to join and to participate in the activities of a political party or organisation of their choice;
(b) to campaign freely and peacefully for a political party or cause;
(c) to participate in peaceful political activity; and
(d) to participate, individually or collectively, in gatherings or groups or in any other manner, in peaceful activities to influence, challenge or support the policies of the Government or any political or whatever cause.
(3) Subject to this Constitution, every Zimbabwean citizen who is of or over eighteen years of age has the right—
(a) to vote in all elections and referendums to which this Constitution or any other law applies, and to do so in secret; and
(b) to stand for election for public office and, if elected, to hold such office.
(4) For the purpose of promoting multi-party democracy, an Act of Parliament must provide for the funding of political parties.
Political rights are the mother of all rights. No other right is meaningful without political rights, not even the right to life because life without political rights is not worth living. In other words, no human being – regardless of their work station in society or office – can live or function without having and enjoying his or her political rights.
This is why under section 67(1)(b), every Zimbabwean citizen has the right “to make political choices freely”. This is an inalienable fundamental human right which is not “subject to the Constitution”, save for the permissible limitations of rights and freedoms under section 86(2).
General Sibanda is therefore entitled to make political choices freely under section 67(1)(b), notwithstanding his position as CDF.
Against this backdrop, as CDF, General Sibanda’s appointment as an EX Officio member of the Zanu PF is governed by section 208 of the Constitution, which has been specifically cited by those who are claiming that the appointment is unconstitutional.
The section provides these terms:
208 Conduct of members of security services
(1) Members of the security services must act in accordance with this Constitution and the law.
(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;
(c) prejudice the lawful interests of any political party or cause; or
(d) violate the fundamental rights or freedoms of any person.
(3) Members of the security services must not be active members or office-bearers of any political party or organisation.
(4) Serving members of the security services must not be employed or engaged in civilian institutions except in periods of public emergency.
It is expressly clear from section 208 of the Constitution that – whether he is an Ex Officio member of the ZanuPF politburo or not – as Commander of the Zimbabwe Defence Forces, General Sibanda may not: act in a partisan manner; further the interests of any political party or cause; prejudice the lawful interests of any political party or cause; or violate the fundamental rights or freedoms of any person; or be an active member or office-bearer of any political party or organisation.
But, and this is key to appreciate, understand and to underline: there is nothing in section 208 of the Constitution which provides that “members of the security services may not be members of any political party or organisation”.
All that the section provides is that “members of the security services must not be active members or office-bearers of any political party or organisation”.
Membership of or belonging to a political party or organisation is not prohibited by section 208 of the Constitution.
What is prohibited is being an active member of a political party or being an office bearer – such as being a political commissar or speaking for a political party, addressing public meetings for the party and so forth.
Being an Ex Officio member of the ZanuPF politburo is not and cannot be tantamount or be equivalent to being “an active member” or being an “office bearer” of ZanuPF.
As such, the appointment is arguably not unconstitutional, under section 208 of the Constitution of Zimbabwe.
I say, “arguably”, because I associate myself with the position that only the competent courts of law in the homeland have the authority, power and responsibility to say what is or is not constitutional, with the Constitutional Court of the Republic of Zimbabwe having the final say!
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