Do the events of the past two days in Zimbabwe constitute a coup d’etat? Well, the answer to this question may vary depending on the field of discipline a person speaks from. What we know, however, is that it is only one field that has what it takes to answer the question decisively – law. This short note will give you an insight into how the question may be answered at law. It does not give you an answer.
A legal system is made up of several layers of legal norms (laws). These norms are ranked hierarchically, every lower-level norm deriving legal validity from a higher-level norm. For example, an Act of Parliament derives validity from the 1992 Constitution, while the 1992 Constitution derives validity from the PNDC Law that authorised its making.
Following this trend, one may get to a point where a legal norm would have no higher norm from which it derives validity. For example, the PNDC Proclamation does not derive validity from any higher norm. It came into existence by itself. Its validity is presupposed from the undisputed de facto control that the regime had over State power. Such a norm (which has no higher norm authorising it) is known as the the basic norm (the “grundnorm”). This framework of explanation is called the ‘pure theory of law’.
According to the theory, a coup d’etat occurs where a basic norm changes in a manner that is not contemplated or authorised by the previous basic norm. For example, the 1979 Constitution derived validity from an AFRC Decree. That Constitution also specified (in its amendment clauses) the manner in which it may be changed. However, the PNDC Proclamation, on December 31, 1981, removed the 1979 Constitution (together with its basic norm, the AFRC Decree) in a manner not contemplated by the legal system. So we said there was a coup d’etat in Ghana in 1981.
Now, you may apply this framework to the current situation in Zimbabwe and come to your own conclusion whether there’s a coup d’etat and, if so, when it happened.
theoyibo 