Succession under the Constitution of Zimbabwe (Part 1)
By Dr Alex T. Magaisa
This year, I set out to write an account of the new Constitution of Zimbabwe – how it was made, the negotiating history of the clauses and the rationale behind them. It is by no means an authoritative text of the meaning of the constitutional clauses but hopefully, it gives some background to the thinking behind the clauses.
This is work in progress and I am presently revising the first draft. However, given the pertinent issue of succession that is presently in vogue in the context of our politics, I thought readers might benefit from an extract on that particular issue. I stress that these are my views as gathered from my participation in the process and they do not represent the views of any organisation or institution or individual with which or whom I am associated or connected.
Section 92 of the new Constitution introduces a new system of voting for the President and the Vice Presidents. It is a system modelled along the lines of the US Presidential election procedure where a Presidential candidate nominates a running mate whom, upon his election automatically becomes his or her Vice President.
This new procedure was introduced at the Management Committee level of the negotiations after the matter of whether or not to have an Office of the Prime Minister had been “parked” by the Copac co-Chairmen Committee and referred to that level of the negotiating process for resolution.
Our understanding was that the proposition of the running mate system had actually been suggested by Zanu PF members at the Management Committee. This was very interesting because it raised the prospect of factional politics within Zanu PF.
The effect of the running mates system in elections is that it forces the Presidential candidate to pick two persons from his own party to run with him, thereby in the context of succession politics, revealing his favoured lieutenants and his choice for succession.
Under this system, the running mates are not be of equal status – there is a first and second running mate, meaning that in the event of success, there would be a first and second Vice President, ranked in that order. This is important for succession. It means that if the President leaves office, he is succeeded by the first Vice President.
Thus this system easily demonstrates the pecking order within a political party. It allows for a simpler and easier system of succession.
The implication for succession politics for all the negotiating parties but more particularly for Zanu PF, was that this system would force President Mugabe to confront the succession question way before the election and this was something that he had long avoided.
If this system had been used, he would have had to show his hand on whom he favoured to succeed him given his advanced age and the real possibility that someone would have to take over before the expiry of his term of office, if he won the election. Other leaders and prospective candidates had the same problem but it was more evident within Zanu PF.
In the MDC-T also, people started talking. They were asking questions as to who would be the running mates in the event of an election. Unlike Zanu PF, there was only one Vice President – Thokozani Khupe. But already there seemed to be whispers that it was not obvious that the VP would be the running mate.
Given the implications of the issue on succession, it was no longer obvious that VP Thoko Khupe would be the first running mate and it seemed to me that other ambitious cadres were also angling for a more advantageous position. Yet it seemed inconceivable that Tsvangirai would overlook his loyal Vice President and the ambitious cadres were aware of this.
And even if VP Khupe was secure as a running mate, the question remained as to who would be the other running mate? Already, individuals were starting to position themselves. I was aware of rumours linking several senior leaders to interest in the position given the succession angle that it presented.
None of them however ever publicly stated their ambitions. Overall, it was clear that the Presidential candidates in the next election would have had to confront a very hard choice between their lieutenants but it would have given a clear indication on the succession question within their political parties.
The politicians, especially in Zanu PF, were not comfortable with this situation as it put President Mugabe on the spot and it had the potential to effectively thwart the dreams of those who had ambitions to lead the country after Mugabe.
A battle ensued over the running mates issue, with some arguing that it was unnecessary and divisive and others arguing for its retention as it ensured that Vice Presidents were also elected by popular mandate and it allowed for a more certain and smoother succession system.
Where a Vice President is appointed by the President it is harder to argue for his or her succession in the event of vacancy in the Presidency as they would not enjoy a popular mandate. I personally preferred the retention of the running mates clause along with the clear succession clauses.
In the end, a compromise was struck and it left the nation with a poorer and more uncertain succession system. The matter was eventually resolved by retaining the running mates clause in the main body of the constitution but incredibly, postponing its application for a period of ten years.
This suspension was done by inserting Section 14 of the Sixth Schedule, which relieves presidential candidates from having to nominate running mates in the first election and any other election within ten years after that election. Instead, the elected President would be allowed to appoint up to two Vice Presidents just like under the previous constitution.
The effect of this was that the running mates issue became irrelevant for purposes of the first election. Neither Mugabe nor Tsvangirai or any other candidate for that matter, were forced by the new constitution to deal decisively with the succession issue in their parties. This is why in the July 31 elections, the issue of running mates did not feature, even though it is there in the new constitution. It will not apply until at least the 2023 elections.
Under the running mates system of presidential election, Section 101 provides that if the President dies, resigns or is removed from office then the first VP takes over until the expiry of that term of office. The second VP becomes the first VP and the new President must appoint a new person as the second VP. However, like the running mates clause, these provisions were also suspended for the first ten years.
Instead, Section 14 (4)(b) of the Sixth Schedule provides that if the President dies, resigns or is removed from office, the vacancy is filled by a nominee of the political party which was represented by the President when he stood for election.
This means that if any of the three possible scenarios happened during the current term, Zanu PF would nominate a person to take over and complete the Presidential term.
The critical point to note here is that it is not automatic that Vice President Joyce Mujuru would take over as President which would have been the case had Section 101 been applicable. Instead, it is up to Zanu PF to sit down as a party and select a candidate using their own processes and this person is then nominated to become the President for the remainder of the current term of office.
The succession procedure is the same that was used during the GPA period in terms of which the party that held a particular position in Government was entitled to nominate a replacement. This was necessitated by the politics of the time when each of the parties wanted to ensure the protection of its political space within the GNU.
The MDCs in particular, feared that if that protection was not available, Zanu PF would encroach into their spaces, replace an office holder with one of their own and thereby reduce their power and upset the balance of power. They all wanted to retain the balance of power as initially constructed at the inception of the GPA.
While understandable within the context of a coalition agreement, it is difficult to understand why it was necessary to continue with this type of provision in an environment where a single party would be in control of Government. The VP would be from the same party as the President and section 101 could easily have been used to fill a vacancy if it arose. Why was this simpler and clearer system suspended for ten years?
It seems to me that succession politics in the different political parties but especially in Zanu PF, had a hand in this as well. If persons with prospects of becoming VP in their parties and therefore the nation, like Joice Mujuru in Zanu PF or Thokozani Khupe in the MDC, had more influence in the constitution-making process, they would no doubt have chosen to stick with Section 101.
However, those who were negotiating and had influence in the process probably did not share the same interest. Their preference was to leave it to the mercy of party electoral politics as opposed to the guaranteed certainty of section 101 where the VP automatically ascends to the Presidency in the event of a vacancy.
Much less spoken about, but certainly something that was rumoured was the gender dimensions of this debate. It seemed to me that there was a view of discomfort among the male politicians over the real possibility of having one of those two women ascending to the throne.
In both parties, it was women who held the vantage position where section 101 was used as both Joice Mujuru and Thokozani Khupe were likely to be the first Vice Presidents and therefore the first in line to succeed in the event of a vacancy.
There was only one woman, Priscilla Misihairabwi-Mushonga in the entire Management Committee and not a single woman among the co-Chairmen and their experts (one of whom was myself). I think the imbalance was quite obvious. They do not say it openly but it is my observation that notwithstanding their public posturing on gender equality, the majority of male politicians are still overwhelmed and directed by a patriarchal view of politics and leadership.
Looking back, it seems clear to me that the suspension of the running mates clause for ten years was done purely to remove the leaders, and in the case of Zanu PF, to prevent Mugabe from nominating his successor. This system would likely have favoured Joice Mujuru, the incumbent Vice President and those who are opposed to her ascendancy would have none of it.
It was their advantage that the majority of them also had the key roles in the constitution-making process. Mnangagwa sometimes alternated with either Chinamasa or Goche in the Management Committee.
Secondly, the suspension of the clear succession procedure where the VP succeeds the President and its replacement by a system where the party selects and nominates a replacement satisfied the objective in Zanu PF of those desirous of stifling Joice Mujuru’s bid to succeed Mugabe. It meant that instead of it being clear and obvious, she still faces the possibility of contestation.
In the next part, we shall go further and perform a further dissection of the succession procedure in the constitution and explain why it has potential to cause serious trouble for the nation if it is not handled more carefully.
Dr Alex T Magaisa studied law at the University of Zimbabwe (LLB) and the University of Warwick (LLM & PhD) in Great Britain. He is a former adviser to the then Prime Minister Morgan Tsvangirai. Dr Magaisa has worked at the University Warwick, the University of Nottingham and is presently based at Kent Law School, the University of Kent.
You can visit his blog: NewZimbabweConstitution.wordpress.com