via Constitutional Implications of Delays on the Leadership Question | newzimbabweconstitution 8 December 2014 by Alex T. Magaisa
I have been receiving several enquiries regarding a matter that requires some constitutional interpretation. Since I cannot respond to each of those enquiries and because this might be useful to others who have not, as yet, asked, I thought I might as well set out my understanding in one short piece. This is it.
The question is, what happens should the highly unlikely event happen, so that President Mugabe departs office before he announces his new Vice Presidents, which he is expected to do by Thursday of this week.
As I have qualified, this is highly unlikely and highly speculative, but it shows thirst for knowledge and that Zimbabweans have been following the leadership saga very closely. And it is only after looking at such questions that one realises that what seems very simple and straight-forward, can actually be quite hazy and hazardous.
It is easy to see why this speculative question has assumed a high level of relevance in the current political set-up. At present, Zimbabwe has only one Vice President. That Vice President is Joice Mujuru. But after last week’s Congress, VP Mujuru has effectively lost her position in Zanu PF. Not only that but she seems to have lost the confidence and support of her party. So would she assume the President’s role in an acting capacity in the meantime, should that unlikely event happen?
The answer to this is in the affirmative. We have this crazy situation where the out of favour VP Mujuru would assume the Presidency of the country, albeit in an acting capacity for a temporary period (up to 90 days). This alone could spur a mini-constitutional crisis given the present political situation. The fact of the matter is that Mujuru is still legally the Vice President of the country until she is fired or she resigns, which she is unlikely to do. When she visited Stodart Hall yesterday to pay her last respects to national hero Kotsho Dube, they all stood up and respected her as per protocol because she is the country’s number two, notwithstanding what happened at the Zanu PF Congress.
In terms of section 14(4)(a) of the Sixth Schedule to the Constitution of Zimbabwe, if the President “dies, resigns or is removed from office” the Vice-President acts as President until a new President is selected to fill the vacancy. This vacancy is filled by a nominee of the political party which the ex-President represented when he or she stood for election. This means Zanu PF will have the power to nominate a person to succeed President Mugabe.
But while it is in the process of doing that, under the present circumstances, it will be Mujuru who will be the Acting President, with all the powers vested in the Presidency. There is no stated method as to how the political party is supposed to nominate a successor. It is all down to the political party. Now, it is not clear what procedures Zanu PF has in place for succession. Can such a decision be made by the Central Committee, in place of Congress? Or should an extraordinary Congress be called to conduct an election to select the new President and therefore, the nominee? It is all very murky and could cause serious confusion, creating a recipe for a constitutional crisis.
Other people have asked, what if for some reason the President has to leave the country, would VP Mujuru be the Acting President? The answer to this is largely the same but this could be circumvented. The relevant provision is section 100 which states that ordinarily, the Vice President should assume the Presidency in an Acting capacity. So under this provision, VP Mujuru could become the Acting President, leading to the same conundrum as described above.
However, this could be circumvented. There is also another provision, section 100(1)(c), which provides that, “if there is no Vice-President who is able to exercise the functions” a Minister may be designated for that purpose by the President or nominated by the Cabinet. This means if President Mugabe must leave the country suddenly, he could designate one of his Ministers to act as President in his absence, reasoning that even if VP Mujuru is still in office, she is no longer “able to exercise the functions” of the Presidency. That would be stretching it but I can see how it can be used to argue that the issue is not whether she exists but whether she is “able to exercise the functions” of the Presidency given her present circumstances. This would also be murky and messy but not impossible.
All this demonstrates the irresponsibility being demonstrated at the highest levels of authority. This is very unlikely, of course, but leadership must anticipate all possibilities. President Mugabe and Zanu PF have shown their displeasure in VP Mujuru but he has hesitated to make decisions decisively to avoid potential and unnecessary crises. There is really no need for him to prolong the issue, taking time to announce his deputies. Leadership demands decisiveness but so there has been too much hesitation and unsureness.
The hope is that these questions asked by the public do not have to be answered in real life and that sooner rather than later, President Mugabe will make his announcements. But the drama is not necessary. These speculative enquiries by members of the public would not exist if there wasn’t the unnecessary drama.