Source: ED’s leave raises questions – NewsDay Zimbabwe January 17, 2020
On or around January 8 2020, the nation was advised that President Emmerson Mnangagwa (ED) had proceeded on his annual leave and had for that reason nominated (Retired) General Constantino Chiwenga and (Retired) Colonel Kembo Mohadi, on a rotational basis, to act in his stead during the period of his absence.
It was inauspiciously advised that ED would be in the country for the entire duration of his annual vacation.
His Excellency has, however, subsequently performed certain Executive functions during the advised vacation. I have been consulted to give advice on the constitutional implications of these developments.
Paragraph 14(3) of the sixth schedule of the Constitution of Zimbabwe 2013, provides as follows:
(b) two Vice-Presidents are appointed in terms of sub-paragraph (2), the President may from time to time nominate one of them to act as President whenever he or she is absent from Zimbabwe or is unable to exercise his or her official functions through illness or any other cause.”
In terms of this provision, an Acting President can only be appointed in two instances viz:
i. If the President is absent from Zimbabwe (this connotes physical absence) or,
ii. If through inability, he cannot exercise his/her official functions (this connotes physical or mental inability which must exist as a matter of objective fact).
In this regard, it does not matter how the inability arises. What is clear is that whatever cause is relied upon by the President must speak to an absolute inability on his part to perform the functions of his office.
Further, the President cannot nominate both his deputies to act as presidents on a rotational basis. He can only nominate one at a time or to use the words of the Constitution, “from time to time”.
In this case, the President is in Zimbabwe and could not have nominated one or both of his deputies to assume the position of Acting President. He also could not have nominated an Acting President on the basis of inability to perform his functions given that such inability does not as a matter of objective fact exist. The grave and concerning surrender by the President of Executive power has neither constitutional warrant nor precedent.
At any rate, it is not open to the President, during the period in which an Acting President is in office, to exercise, on a random basis, the already delegated functions of his office. Executive authority cannot at that level be shared and once delegated, constitutional authority cannot, thereafter, be exercised by the delegate. The President cannot have it both ways.
Either he retains his authority in which event he exercises it or he delegates it, in which event he losses it for the period of the delegation. It is also clear that the President could not have validly nominated both his deputies to act as presidents on a rotational basis. In terms of the Constitution, he could only nominate one deputy at a time or “from time to time”. The unconstitutional act of appointing two deputies to act on a rotational basis is in my view deliberate and was meant to aid the President in his renunciation of the Constitution.
As a result, the country is currently operating under an illegal regime in which the President has not only abdicated his constitutional obligation to observe the law, but has altogether repudiated his position as President. The repudiation comes in that an absence from the country or an inability to perform functions, Executive authority cannot be delegated as has been done. The President not only having delegated the authority, but also having been prepared to share it with his deputies has by his objective actions repudiated his position as Head of State and government.
In terms of section 96 of the Constitution, the President can only resign his office by notifying the Speaker of Parliament in writing that he has done so. There is, however, no process required and none to be followed when the President repudiates his position. A sitting President is at large to repudiate his position either by word or conduct. Repudiation is itself a unilateral act and cannot be recalled. In the immortal words of the Shona, yadeuka yadeuka.
Zimbabwe has accordingly ceased to have a substantive President. In terms of paragraph 14(4)(a) of the sixth schedule, the last Vice-President to have acted in the position of the President, must now exercise complete Executive authority until his party nominates a substantive President in terms of paragraph 14(5) of the same schedule. That is a constitutional imperative.
Thabani Mpofu is an advocate at the Chambers, Harare