via Zanu PF party constitutional amendments unprocedural – The Zimbabwe Independent February 27, 2015 by Derek Matyszak
The state constitution provides that if President Robert Mugabe dies or retires while in office, a nominee of Zanu PF will serve out his remaining term.
The nominee so appointed as state president is likely to be whoever Zanu PF chooses to take over as president and first secretary of the party. Thus the manner in which the Zanu PF party president is chosen, is a matter of national, and not merely party, interest.
At the party’s 6th congress in December amendments were purportedly made to the party constitution which changed the way in which all members of the party Ppresidium, including the president, are to be appointed. The presidium comprises the president, two vice-presidents and national chairman.
However, quite evidently, these amendments were not validly made.
The central committee may not initiate amendments to the party constitution as it claimed to do. Proposed amendments may only be initiated by an organ of the party or an individual member, if the member can garner the support of 50 other members. In each case, the proposed amendments must be sent to a provincial executive council (Pec).
A Pec may itself propose an amendment. The Pec must submit the amendment to the party’s secretary for administration three months before the meeting of the central committee meeting at which the amendment is to be considered. The secretary for administration must then circulate the proposed amendment to the provinces at least two months before the central committee meeting. None of these procedures were followed.
However, rather oddly, immediately after congress ratified these amendments, it proceeded to elect Mugabe as party president (a post within the party’s central committee) in terms of the unamended constitution and in terms of provisions which had but eight minutes previously been repealed. Accordingly, if the amendments are valid, Mugabe’s appointment cannot be, and vice-versa.
A further anomaly rose in that Mugabe’s appointment was made before the dissolution of the central committee which preceeds the election of new members, including the presidium, at each five-year congress. When the central committee was dissolved, all members of the presidium, including the just-appointed Mugabe, technically lost their positions.
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In terms of the Zanu PF constitution all members of the presidium of the central committee had to be re-appointed after that body’s dissolution. There was no re-election of Mugabe. Mugabe is thus not properly appointed as Zanu PF president, either because he was not appointed in terms of the amended party constitution (if those amendments were valid) or because he lost his post when the central committee was dissolved.
The two party vice-presidents are likewise not validly appointed. This is either because the amended procedures in terms of which they were appointed (ie providing for appointment by Mugabe and not election by congress as previously) are invalid or because they were appointed by a person who had no authority to do so — ie by Mugabe who had himself not been properly appointed as party president.
It is also a requirement of the Zanu PF constitution that there be a national chairman who has numerous functions in terms of the party’s charter. It is not open to Mugabe to simply unilaterally amend the party constitution to do away with this post, as he claimed to do.
As a result, none of the Zanu PF presidium has been properly appointed and these appointments are legally void.
This is largely a matter for Zanu PF. However, should it become necessary for Zanu PF to nominate a replacement for Zimbabwe’s state president, the party may claim to do so in terms of provisions of its constitution which are clearly invalid and which have not been properly introduced. This will render the succession process messy, subject to legal challenge and will have a destabilising effect upon the country.
The purported amendments to the Zanu PF constitution made at the last congress violated the procedures provided for in the party’s constitution in numerous respects. They cannot be held to have been validly made. Yet these amendments may be claimed to govern the manner in which a nominee is submitted to the Speaker of Parliament as Mugabe’s successor in the event of Mugabe’s death or retirement. Furthermore, even if the amendments were valid, Mugabe was not appointed as party president in accordance with these amendments.
If the amendments are invalid, Mugabe is not rescued by the fact that he was appointed in terms of the unamended provisions, as his appointment was made prior to the dissolution of the central committee, and Mugabe had to be elected after such dissolution in order to assume the position of party president. If the amendments were valid, Mugabe had no authority (not being properly elected as president himself in terms of these amendments) to appoint the vice-presidents of the party, whose appointments are thus likewise improper. If the amendments were null and void, the vice-presidents’ appointments remain invalid as having been made on the basis of these invalid amendments.
Vice-President Emmerson Mnangagwa may not have read out the minutiae of all changes made to the party constitution. He may have done so out of consideration — to avoid boring delegates with lengthy and, to the delegates, seemingly tedious legal technicalities. He also might have thought it wise not to inform delegates that Section 21(2) of the constitution, which indicates the power of congress to appoint the president, had either been expressly or impliedly repealed. Had he done so, it might have been apparent to even the most inattentive delegate that the delegates had enthusiastically appointed Mugabe as president in terms of a clause which they had only minutes before repealed with (almost) equal enthusiasm.
Contents of the Zanu PF constitution remain obscure. The Zanu PF constitution and the amendments made are not readily available to the public or even to party cadres, notwithstanding the fact that the changes are of national, let alone party, interest. The possibility thus exists that unknown clauses were inserted into the constitution which attend to the problems raised here. The probability, however, is otherwise.
Matyszak is a lawyer and senior researcher at the Research and Advocacy Unit in Harare. See the full research document on theindependent.co.zw
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