Mthwakazi Republic.

                        THE DEONTOLOGY.

(Study the law with Blessed Mupatsi and Nompilo P. Nkomo).

N.B this is a scholarly argument on the events in Matabeleland using International law.

The recent events in the city of Kings and Queens (Bulawayo) has led to people speculating on whether this is the first step towards the formation of the Mthwakazi Republic. The subject matter has resulted in scholarly arguments with colleagues in the Public International Law class on the mandate of the Mthwakazi Republic and their prospects of succeeding. The deontology will explain briefly the background towards the formation of the Mthwakazi Republic and further explore at depth the realization of this aim using international law principles and precedent. 

Zimbabwe has had numerous secessionist parties inclusive of Matabeleland Liberation Organisation (MLO), Mthwakazi Liberation Front (MLF) and Mthwakazi Republic Party (MRP), which has played a significant role from its establishment. MRP is a political party launched on 11 January 2014 formed in Matabeleland Province. The MRP main goal is liberty of the Mthwakazi people namely; the Sotho, Ndebele, Xhosa, Swazi, Kalanga, Nambia, Lozwi and Griqua among others within the region and the restoration of Mthwakazi nation [South Africa-Zambia and Botswana-Zimbabwe (with the border in Mnyathi River in Kwekwe)]. 

Under International law, minority groups that qualify as ‘peoples’ have the right to self-determination. This concept has burgeoned from a principle into an indisputable right in international law (jus cogens) with erga omnes status. Generally, self-determination is the ability of all ‘peoples’ to freely determine their political fate and form a representative government. However, there is no international treaty that defines ‘people’ for the purposes of self-determination. Scharf in Earned Sovereignty: Judicial Underpinning (2003) 373-79, submits that classification entails a subjective element, such as a common belief by members of the group that they share the same characteristics and beliefs and thus, form a common unit, as well as an objective element such as common racial background, culture, ethnicity, religion, language and history. Broadly speaking, this right has two connotations- the internal and external. 

1. The internal aspect implies the right of the people of a state already recognised by the international community to freely pursue their economic, social and cultural development ideally through participation in the nation’s political decision-making process, representative and democratic governance.

2. The external aspect concerns itself with the right of a people to determine their nationality and statehood. 

While international law embraces the principle of self-determination, it does not contain a right of secession. However, international law merely tolerates secession in instances of external self-determination, where a people is colonized or oppressed. The external aspect of self-determination (secession) recognizes the disintegration of a State in an effort to form an independent state. 

Secession is the act of defying the rule of the parent state, not through revolution or otherwise trying to change the government of the state, but to exclude the jurisdiction of the parent state from the claimed territory of the secessionists. There are two theories that encamps the principle namely:

1. The declaratory theory of secession echoes the Declaration of the Montevideo Convention on the Rights and Duties of States, in that a state exists if it possesses a permanent population (Western Sahara case), a defined territory, a government and the capacity to enter into relations with other states, if an entity fulfils this criterion then it exists regardless of recognition argues Eckert, Constructing States: The Role of the International Community in the Creation of New States (2002) 21.

2. On the other hand, the constitutive theory of secession puts more emphasis on recognition of statehood rather than statehood alone. 

Can Mthwakazi rely on International principles in order to assert the right to independence from Zimbabwe? 

At the end of the colonial era, African leaders legitimized the territorial framework used during the colonial era. The immediate consequence led to the evolution of the doctrine of uti possidetis (Roman principle) which matured over the years. Essentially, the doctrine provides that new states will come to independence with the same borders that they had administrated by colonial powers. The fundamental aim of this doctrine was to ensure stability of state boundaries. The Chamber of the International Court discussed the doctrine in the leading case of the Frontier Dispute (Burkina Faso / Republic of Mali):

‘…the principle (of uti possidetis) is not a special rule which pertains solely to one specific system of International law. It is a general principle, which is logically connected with the phenomenon of the obtaining of independence and stability of new States being endangered by fratricidal struggles provoked by challenging of frontiers following the withdrawal of the administering power.’

In African context, many boundaries are inherited from colonial powers. It is therefore undeniable that uti possidetis applies within the framework of decolonization in the accepted sense. The key question is whether the doctrine has an application in the context of independence from already independent States that is outside of the traditional decolonization process. It is a matter of law, that whatever the circumstances the right to self-determination must not involve changes to existing boundaries at the time of independence except where the State concerned agrees otherwise (consensual change) see South Sudan case which MRP points out on possibility. Correspondingly, the application of external self-determination (secession) is problematic, consequently justifying criminalization of any conduct aimed at achieving secession through external self-determination. In expanding on this particular discussion it is pivotal to briefly shed some light on the Zimbabwean position on issues of external self-determination (secession).  

Municipal law in Zimbabwe has negatively affected the right to self-determination as internationally recognized. The Constitution is the supreme law of Zimbabwe thus any law, practice, custom or conduct inconsistent with it is invalid (emphasis) to the extent of the inconsistency. Firstly, as provided in section 1 of the Constitution Zimbabwe is a unitary (emphasis), democratic and sovereign republic. Generally, the term unitary as used in the Constitution means that Zimbabweans boundaries cannot be redrawn. As a matter of law, the aim of MRP is ultra-virus the Constitution and violates a legal principle of Zimbabwe being a unitary state. This limitation hinders the right to Self-determination of the Mthwakazi people in Zimbabwe. 

In addition to the above, the preamble of Chapter 14 is clear about external self-determination (secession):

Whereas it is desirable to ensure:

1. The preservation of national unity in Zimbabwe and the prevention of all forms of disunity and secessionism. 

Therefore, self-determination claims by the Mthwakazi people or any secessionist movement violates the constitution. Moreso, the government is obligated by the Constitution of Zimbabwe to prevent any forms of disunity and preserve national unity. One can conclude that the current constitutional provisions in Zimbabwe criminalise external self-determination (secession) the internationally recognized right. 

Additionally, section 22 (2) (a) of the Criminal Law (Codification and Reforms) Act criminalizes external self-determination:

(2) Any person who, whether inside or outside Zimbabwe

(a) organizes or sets up, or advocates, urges or suggests the organisation or setting up of, any group or body with a view to that group or body

(i) overthrowing or attempting to overthrow the Government by unconstitutional means; or

(ii) taking over or attempting to take over the Government by unconstitutional means or usurping the functions of the Government; or

(iii) coercing or attempting to coerce the Government;

The term ‘unconstitutional means’ as provided in the Act means any process which is not a process provided for in the Constitution and the law. Therefore, as highlighted above the Constitution of Zimbabwe does not recognize external self-determination (secession) therefore; it is an ‘unconstitutional means’. 

Therefore, any referendum done by the Mthwakazi people is void ab initio it does not bind Zimbabwe making it of zero effect.

Is there a realistic possibility of Mthwakazi Republic being recognised as a state? A few months back the Mthwakazi leader Mqondisi Moyo penned a letter to the Biden administration to recognize Mthwakazi as an independent state, and that letter is still a developing story.  The Montevideo Convention of 1933 provides the traditional requirements of statehood and recognition is one of the key elements. Recognition is an official action by a state acknowledging, expressly or by implication, de facto or de jure, the existence of a government or a country or a situation such as a change of territorial sovereignty. Before a state is officially a state it is an entity, and in order for an entity to become a state it must be unilateral or collectively recognised. The consequence of action of an unrecognized state is that it cannot participate as a legal person (does not have legal personality). 

In addition, with principles such as uti possidetis it becomes difficult especially for Southern African Development Community (SADC) to recognize a new state emerging from a member state especially with Zimbabwe opposing such conduct. 

Assumingly, Mthwakazi Republic emerges as a new state and its leaders have not given much thought of what they will do as an independent state. SADC members especially those that are likely to share the same boundaries with Mthwakazi would want to know their international policies especially on borders and immigration. Failure to give thought on these key issues will affect the Mthwakazi aim negatively. How will Mthwakazi Republic be part of SADC when Zimbabwe another member is wholly opposed to the acknowledgement of Mthwakazi statehood by other members or SADC institutions? The Mthwakazi people must not assume things but clearly outline things especially those that will affect neighboring countries. 

The next article will conclude on the possibility of Mthwakazi being a new state, identifying legal avenues available to the Mthwakazi people to have their pleas addressed by government.