Legal notes on what happens if Mugabe dies
By Derek Matyszak (Research and Advocacy Unit, Harare)
“We say to hell, to hell, to hell with them.” – Robert Mugabe
ZANU PF supporters have on several occasions expressed the wish that President Robert Mugabe die in office. With speculation about Mugabe’s ill health rife and more plausible than usual, it is interesting to consider the legal position and what ought to happen in terms of the current constitution if Mugabe were to die today.
Section 29(3)(b) of the Constitution provides that if the president becomes incapable of performing the duties of his office by reason of mental or physical incapacity he will cease to hold office if a joint committee of the Senate and House of Assembly formed at the request of a two thirds majority of Parliament so recommends.
This provision was supplemented in 2007 by Constitutional Amendment No 18, drafted specifically with the possibility of Mugabe’s sudden death or retirement in mind. Section 28(2)(b) of the current constitution now provides that if the office of the president becomes vacant by reason of death, resignation or removal from office, the two Houses of Parliament will come together as an electoral college to elect a new president.
The new president will remain in office until the next election. If these provisions are implemented, given the intense jockeying that is likely to take place to fill this immensely powerful post, the procedure to be followed is of some interest. The election of the president through the Parliamentary Electoral College must take place within 90 days of the death or resignation.
The procedure to be followed is set out in the Fifth Schedule to the Electoral Act. The Clerk of Parliament plays an extremely important role in this regard. He sets the date of the election on not less than 14 days notice and simultaneously invites nominations for the post from members of Parliament.
Candidates must have at least 25 nominators and must signify their acceptance of the nomination in writing. The Clerk of Parliament, whose decision is subject to review by the Supreme Court, may reject any nomination which does not comply with the Act.
Where there is more than one candidate a vote then takes place, with the House of Assembly as the preferred venue, and presided over by the Chief Justice. Half the members of the Electoral College constitute a quorum, but, if there is no such quorum, the matter is simply adjourned for an hour and those present thereafter constitute a quorum.
Voting is not secret. The Chief Justice directs persons to gather in blocs in parts of the House allocated to each candidate and for whom they wish to vote. One member of the bloc is appointed to compile a register of number of persons and their names in his or her candidate’s bloc. The tally of supporters in each bloc is then given to the Chief Justice, who announces the figures.
If no candidate receives an absolute majority of votes, the candidate with the least number of votes is eliminated and the process repeated until such a majority is achieved. If there are only two candidates, who receive an equality of votes, the process is repeated over and over, with such adjournments not exceeding 48 hours as the Chief Justice may determine, until one candidate has attained majority.
The Chief Justice announces that candidate as duly elected as president. Lists of those comprising the voting blocs, indicating who voted for whom is entered into the Journals of both Houses. However, since the enactment of the Constitutional Amendment No 19, (which incorporated, almost verbatim, Article 20 of the appallingly drafted Inclusive Political Agreement) little is clear and free from ambiguity in relation to the composition of Zimbabwe’s government.
One of the most glaring anomalies is that Zimbabwe’s constitution is unique in that it does not merely provide that Zimbabwe is to have a president, but it is a constitutional requirement that the president is a specific individual, Robert Gabriel Mugabe. On the death of Mugabe there can be no compliance with this provision. It is unusual that constitutional provisions are drafted in such a way that their implementation may be avoided on account of vis maior (an act of God).
However, from this provision it may be inferred that the legislature did not contemplate that the post of presidency would be occupied by any other person during the subsistence of the Global Political Agreement (GPA), and thus that no provision was made for the contingency of Mugabe’s death. It is then arguable that Article 20.1.10 of Schedule 8 to the Constitution was not intended to apply to the presidency.
Article 20.1.10 provides: In the event of any vacancy arising in respect of posts referred to in clauses 20.1.6 and 20.1.9 above, such vacancy shall be filled by a nominee of the Party which held that position prior to the vacancy arising. The office of president is a post referred to in clause 20.1.6. If it is held that this clause does apply to the presidency any vacancy arising through the death of Mugabe, must be filled by a nominee of ZANU PF.
The provisions of Schedule 8 to the Constitution “shall, during the subsistence of the Interparty Political Agreement, prevail notwithstanding anything to the contrary in [the] Constitution.”
However, a further question arises as to whether 20.1.10 is intended to replace the provisions relating to the Parliamentary Electoral College or to exist alongside them. If they are to replace the provisions, then ZANU PF may nominate a replacement for Mugabe, and the nominee is presumably sworn in as president as if elected without further ado.
This interpretation should not be accepted lightly. An enormous amount of power is concentrated in the presidency. Section 28 of the Constitution requires that the president is democratically elected either through a national election or through an electoral college comprising primarily democratically elected representatives of the people.
The effect of this interpretation is that these democratic provisions are excluded in favour of a provision which allows the president to be selected by a party cabal, and the person so selected may lawfully continue in office until 2013 or the next election. This clearly subverts normal democratic practice. However, there is no need to interpret Article 20.1.10 in this manner.
Article 20.1.10 is not “contrary to something elsewhere in the constitution” and does not contradict the provisions relating to an Electoral College. Reading the provisions together would merely create a requirement that only ZANU PF nominees may be submitted to the Clerk of Parliament as candidates for election by the Electoral College to ensure that the vacancy is filled by a nominee of ZANU PF.
To summarise, as the constitution now stands it is unclear whether Article 20.1.10 applies to the presidency. If it does not, any Member of Parliament able to muster the endorsement of 25 other Members may submit nominations for election to the presidency through the Parliamentary Electoral College.
If 20.1.10 does apply, it is unclear whether the law requires simply that a ZANU PF nominee is appointed as president without further ado, or whether the law requires that an election is conducted through Parliament acting as an electoral college, but with only ZANU PF nominees as candidates.
This ambiguity in the law to be followed upon Mugabe’s sudden death, when considered alongside the uncertainties of ZANU PF’s succession politics, has the potential to turn the merely messy into the thoroughly chaotic, as each contender endeavours to apply an interpretation of the law which is most advantageous to him or her.
Past displays of ruthlessness by competing factions within ZANU PF over the succession issue suggest that this is not a prospect to be welcomed. There is no constitutional requirement that the nominee submitted by ZANU PF for appointment as president is the person who succeeds Mugabe as leader of ZANU PF in terms of ZANU PF’s Party Constitution.
There is also no provision in Zimbabwe’s Constitution indicating who has the authority to submit the name of the ZANU PF candidate as nominee to fill the vacancy, the assumption being that this would be determined by ZANU PF as a party and more particularly, that Mugabe would represent ZANU PF for the purpose of submitting nominations for executive vacancies.
The ZANU PF constitution also contains no clear provisions as to what is to happen on the demise of its president. The president is elected by the National People’s Congress. This Congress convenes every five years and the 230 member Central Committee is mandated to act on behalf of the Congress when it is not in session.
Fissures within ZANU PF might develop into open rifts within the Central Committee, which may be unable to reach consensus on the ZANU PF nominee. Rival groupings may both claim the right to put forward a candidate for immediate appointment as President in terms of Article 20.1.10.
In this situation a faction or factions of ZANU PF may seek to exploit the ambiguity of the law outlined above, and, if they feel that their favoured candidate will not be put forward under 20.1.10 as the sole and most probable electee may demand that the competing nominees face an election through the Parliamentary Electoral College, arguing, as they would have every right to, that this is the correct and lawful procedure to be followed.
At this juncture it is also worth noting that the provisions of Article 20.1.10 only have application during the subsistence of the GPA. If the GPA has terminated due to the withdrawal of any party (and there is no legal impediment to a party so doing), then the constitutional requirements of convening an electoral college must be implemented and nominees will not be restricted to persons from ZANU PF.
If MDC-T shows more chutzpah than it has hitherto, it may insist that Article 20.1.10 has no application to a vacancy in the presidency or decide to withdraw from the GPA precisely so that Article 20.1.10 has no application and its own nominees might be advanced as candidates to the Electoral College. Once again, matters could get extremely messy juridically.
If MDC-T withdraws from the GPA after the death of Mugabe, but before the appointment of a replacement it is unclear whether Article 20.1.10 should still have effect, or whether it will fall away and the constitutional provisions relating to the Electoral College have sole, unadulterated application. In other words does one apply the constitutional provision prevailing at the time of Mugabe’s death or at the time of determining the replacement?
Given the current composition of the Houses of Parliament, in the event of an electoral college being convened, the MDCs’ position will present possibilities for manoeuvre. The 100 seat Senate comprises 60 elected seats, 10 provincial governors, 12 appointed seats and 18 chiefs. Of the 12 appointed seats, four must be nominees of MDC-T and two nominees of MDC-M.
The House of Assembly has 214 seats, 210 of which are elected, while one Vice-President, the Prime Minister and two Deputy Prime Ministers hold seats ex officio.
Due to vacancies arising from the death and suspension of some Members, the current party voting strengths in the House of Assembly are MDC-T 96; ZANU-PF 96; MDC-M 7, a total of 199 Members. In the Senate the MDC-T has 27, the MDC-M 8 and ZANU PF 29 elected and appointed Members. The remainder of sitting Members comprise 10 Provincial Governors and 17 traditional Chiefs making a total of 91 sitting members.
Mugabe has extensive powers over the appointment and dismissal of Chiefs and all Provincial Governors in the Senate are Mugabe appointees. On the basis of their past records, the Chiefs and Governors can be expected to vote with ZANU PF. On this basis the combined voting strengths in the two Houses sitting as an electoral college is the MDC formations 138 (15 MDC-M) and 152 ZANU PF.
ZANU PF thus has a narrow margin of a 14 seat majority by virtue of the presence of Governors and Chiefs in the Senate (and therefore the Electoral College). The significance of the manner in which these appointments are made thus comes to the fore. Article 20.1.3(p) of Schedule 8 to the Constitution and section 115 of the Constitution together require that any appointments made by Mugabe in terms of any Act of Parliament be made with Tsvangirai’s consent.
The appointment of both Governors and Chiefs are made by Mugabe in terms of Acts of Parliament and thus both require Tsvangirai’s consent. Mugabe has refused to follow this constitutional requirement in regard to the appointment of Governors (a matter of some current controversy) and Tsvangirai has not attempted to seek compliance in regard to the appointment of Chiefs.
Leaving the dispute over the appointment of the Governors to SADC, rather than testing this in the courts, may thus not be the wisest course of action for MDC-T. Nonetheless, it is obvious that in a poll by the Parliamentary Electoral College to choose between several ZANU PF candidates competing for the presidency, it would be numerically possible for the MDC-T, MDC-M or either party alone to determine the outcome.
One would expect the MDC to provide support to one candidate or the other only in exchange for some political concessions relating to the powers of the future president and the governance of the country.
However, these legal niceties are unlikely to find traction in the less subtle realm of Zimbabwe’s present political milieu. A powerful political cabal within ZANU PF will most probably impose its anointed successor claiming the authority of Article 20.1.10 to do so. This cabal may have the political power and brute force to swiftly crush any rivals seeking to advance an alternate person or process to determine the succession.
And if it has the power to rapidly impose its will in this manner, so too will it have the power to ensure that the advent of democracy in Zimbabwe is indefinitely delayed. Research and Advocacy Unit, Harare
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