BSR: Analysis of Mugabe’s exit deal
Questions have arisen over former President Mugabe’s exit deal following his resignation on 21 November 2017. The first relates to his compensation package and the second concerns an immunity deal. This piece analyses these two issues on the assumption that the media reports are an accurate reflection of the exit deal.
It has been reported that Mr Mugabe was offered a compensation package of more than $10 million, of which $5 million is to be paid immediately in cash. The rest will be paid in instalments. In addition, Mr Mugabe will continue to receive his annual salary (said to be $150,000) until his death. If she survives him, his wife, Grace Mugabe, will receive half the salary for the rest of her life. It has also been reported that he was promised protection for his family’s business interests. Many people are concerned that this was an expensive deal, particularly for a man who faced removal by parliament.
The $10 million payment is what would normally be described in corporate parlance as a “golden handshake”. It is not unusual where two companies are merging that the head of one of the companies who stands to lose his job is offered a “golden parachute”. This is an incentive to reduce resistance against the takeover/merger transaction. Many consider that a $10 million package over and above Mugabe’s normal pension is a lot of money in a country where the majority are barely managing to scrap a dollar a day. There are chronic cash shortages and the country is struggling to pay its debts. Many have questioned quite how a man whose family has seemingly amassed a great deal of wealth during his time in office has been allowed to leave with such a handsome package. An examination of the circumstances leading to Mugabe’s departure gives some clues.
The “golden parachute” was part of a package of incentives to persuade Mugabe to resign. It was made more imperative by the military action which stretched the bounds of legality. The generals were keen to cleanse the military intervention and the golden handshake was part of that cleansing process. The days preceding Mugabe’s resignation saw intensive negotiations between Mugabe and the military generals mediated by Catholic cleric, Father Fidelis Mukonori who has a strong relationship with Mr Mugabe and would have looked out for his interests. The generals were anxious to avoid blatant breaches of the law and they were desperate to maintain a veneer of legality over their actions. The golden parachute would have been offered to ensure Mugabe left without them having to resort to more drastic measures. Mugabe was aware of their handicap, and with the constitution on his side, he would have bargained hard to get a handsome deal. If it was too expensive for the ordinary person, for the generals it was the cost that had to paid to get rid of Mugabe without stretching the law any further. The military action was necessary but it raised the cost of removing Mugabe.
The authors of Mugabe’s ouster were also constrained by their long relationship with him. They wanted him to go but they also had residual respect for the man who had led them for more than 40 years. They had stopped short of using outright force to remove him and they preferred a “dignified” way for him to go hence the insistence on his resignation in exchange for an exit deal. They were not going to let him go with nothing. They could have let him go with no exit package since parliament was already on its way to remove him. They kept the deal on the table even though it was clear he was certainly on his way out.
The other part of the compensation whereby Mugabe will continue to receive his salary is sanctioned by the constitution. Section 102(3) provides that a former president is entitled to receive a pension that is equivalent to the salary of a sitting President. This means a former president continues to be remunerated as if he were still the president. It means if the current or future president’s salary is raised, Mugabe’s pension will also rise. The same provision also applies to former Vice Presidents. Joice Mujuru is entitled to similar benefits, although when she was offered, reports indicated that she had rejected the offer.
The same constitutional provision also provides that a former president is entitled to “such allowances and other benefits as may be prescribed under an Act of Parliament”. There is a law that provides for presidential pensions and it is under that law that Grace Mugabe would be entitled to benefits after Mugabe’s death. In fact, the late former President Canaan Banana’s wife, Janet Banana is also entitled to the same benefits and if she has not claimed them she is entitled to do so.
Some will question why this is so, but it is standard procedure across countries to provide for presidential pensions and benefits. Part of the rationale is that a handsome pension package works as an incentive for leaders to leave power. There is a fear that leaders may be reluctant to leave power because of fear of losing the perks of office. The idea is that if their lives do not change materially between their time in office and after it, they will be encouraged to leave when their time comes.
Besides, incumbents are generally happy to give their predecessors a golden handshake because any sour deal would create a bad precedent. They know one day they will have to leave power too and they expect a golden handshake. This means they have no real incentive to oppose a golden handshake for their predecessor.
The second issue that has been raised relates to immunity. It has been reported that Mr Mugabe and his family have been granted immunity from prosecution. Last week, I wrote on the issue, in anticipation of it being raised as part of the exit deal. As I pointed out then, the issue of immunity is already covered under the constitution. Under section 98, a president has immunity during his tenure of office. Section 98(1) states: “While in office, the President is not liable to civil or criminal proceedings in any court for things done or omitted to be done in his or her personal capacity”. During his tenure in office a president can be sued in his official capacity, but he cannot be sued in his personal capacity.
However, once a person ceases to be president, he no longer enjoys immunity. Section 98(2) provides that “Civil or criminal proceedings may be instituted against a former President for things done and omitted to be done before he or she became President or while he or she was President.” This means legal action or criminal charges can be brought against a former President for whatever he or she did before or during the presidency. This means as a former president, Mr Mugabe is no longer protected by presidential immunity. He can be sued in his personal capacity.
Section 98(4) allows a former president to argue in defence that he was acting in good faith for actions or omissions when he was president. Section 98(4) provides: “In any proceedings brought against a former President for anything done or omitted to be done in his or her official capacity while he or she was President, it is a defence for him or her to prove that the thing was done or omitted in good faith.” It is important to note that the former president has the onus to prove that he was acting in good faith. In other words, there is no presumption of good faith. The former president must prove that they acted in good faith.
As stated in my article, now that he is no longer in office, Mr Mugabe is exposed to legal action. It is presumably on this basis that the exit deal includes provision for immunity from law suits. The question is whether the exit deal takes precedence over the constitution. It is axiomatic that the constitution is the supreme law of the country. Section 2(1) of the constitution states that: “This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.” This means if, as it appears, the deal is inconsistent with the constitution, it is invalid. If sued, the courts should give precedence to the constitution and he would have to prove that his acts were done in good faith. As for members of his family, the immunity would not hold. They never had immunity during his presidency and they cannot claim immunity now.
Power of mercy
The president may exercise the power of mercy in favour of any person. According to section 112(1), after consultation with the Cabinet, the president may “grant a pardon to any person concerned in or convicted of an offence against any law”. There are various other forms of mercy that the president can exercise, including substituting a less severe punishment for that imposed by a court of law. This is one mechanism through which President Mnangagwa may extend a hand of protection for Mr Mugabe and his family.
The president has in the past granted amnesty to offenders, thereby preventing their prosecution. In the past I have written a BSR showing how presidential pardons have been used to protect human rights offenders and in the process, have promoted impunity. One example was the Clemency Order No. 1 of 2000 which granted ‘free pardon’ to ‘every person liable to criminal prosecution for any politically-motivated crime committed during the period 1 January 2000 to 31 July 2000’. The purpose was to protect those who had committed political violence in the run-up to the 2000 parliamentary elections and the farm invasions that took place soon after the constitutional referendum.
However, it is important to note that this power of mercy can only be exercised after consultation with Cabinet. As Zimbabwe does not currently have a Cabinet, this power cannot have been exercised as yet. Mr Mugabe could not have granted a pardon to himself while he was in office. In any event, according to section 112(3), the grant of a pardon must be published in the Government Gazette. There is no notice of any pardon that has been granted to the Mugabe family.
Therefore, as things stand, the exit deal that Mr Mugabe allegedly received has no basis at law. The exit deal does not trump the constitution. If President Mnangagwa intends to protect him using his authority under the power of mercy, this must await consultation with cabinet (which he will easily get) but it must also be published in the Government Gazette for the world to know. That would be an inauspicious beginning for his presidency.