When you get rid of your dictator, is it important to follow the rules? That delicate question is dominating the transition-in-progress in Zimbabwe, where long-time President Robert Mugabe has refused to step down despite the demands of the public, the army and his own political party.
The counter-intuitive answer is that it actually is worthwhile to show obedience to the rule of law, even when the person being overthrown hasn't and doesn't. Following the rules sends a message that the future regime wants to respect the law. If the Zimbabwean people, who have had 37 years of Mr Mugabe, can wait a few more weeks to remove him lawfully, the delay will have been worth it.
The events in Zimbabwe have been fascinating, not least because they haven't followed the usual pattern of dictator removal. Ordinarily, dictators remain in power until serious cracks appear in their authority -- after which they crumble fast.
In this way, the fall of a dictator is like bankruptcy as described by Ernest Hemingway in The Sun Also Rises: " 'How did you go bankrupt?' Bill asked. 'Two ways,' Mike said. 'Gradually and then suddenly.' "
The combination of a general appearing on television to announce the transition, the largest protest in the country's history and the general sense that Mr Mugabe is finished ought to have moved the transition from the gradual stage to the sudden.
Mr Mugabe, at 93, cannot realistically expect to continue to hold power. By now it is also clear that he won't be able to transfer power to his wife, as he apparently intended to do. Yet Mr Mugabe hasn't abdicated his position -- and he hasn't yet been removed by force.
The main explanation seems to be the strong desire of the relevant actors to follow a legal script, so they can continue to claim, as they have from the beginning, that their coup isn't really a coup at all. And Mr Mugabe, for his part, has been taking advantage of this desire for a semi-orderly transition. After the ruling political party, the Zanu-PF, purported to expel him from the party, Mr Mugabe insisted in a speech that he would preside over the party congress meant to convene on Dec 12.
According to the Zanu-PF party constitution, the head of the party can (arguably) only be removed by a vote of the full party congress -- not by the leadership of the central committee that voted Mr Mugabe out. The party also lacked the legal authority to remove Mr Mugabe from the presidency. Consequently, the central committee voted to direct the party whip to commence impeachment procedures against Mugabe yesterday if he had not resigned by then.
Exploiting the fact that no one with formal legal authority to remove him from the presidency has yet acted, Mr Mugabe has not (as of this writing) agreed to step down. It would appear that he intends to let the impeachment process go forward. It could potentially go fast, or it could take several weeks.
Most important, given the composition of parliament, Mr Mugabe can only be removed from office with the active participation of the opposition. And the opposition can be expected to try to extract some promises of power-sharing from the Zanu-PF leadership.
Given Mr Mugabe's canny skill at resisting removal using procedural barriers, it will be very tempting for the military and the politicians alike to force him out without respect for the formal procedures.
One effect of autocracy and one-party rule is that it tends to weaken the idea that constitutional niceties must always be observed. What's more, the democratic ideal that the people should be able to remove a de facto dictator would also seem to point in favour of rapid and direct action.
But that perspective would be a mistake. Zanu-PF and the military and the Zimbabwean people would be much better served by a legal process than by an efficient one.
This constitutional respect doesn't guarantee that the next leader of Zimbabwe will truly respect the rule of law. But it does increase the likelihood that, when future conflicts arise between political expediency and a constitutional rights, the new leadership will be open to respecting those rights. - BLOOMBERG VIEW
Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University.