This is the second of our 2 Big Saturday Reads this weekend. This article looks at the issue of succession should a vacancy arise in the office of the President. It explains the position under the national Constitution and also highlights potential challenges in the ZANU PF constitution which need to pre-empted to avoid a potential constitutional crisis.
What happens should a vacancy arise in the office of the President before the expiry of the incumbent’s term is a question which has been raised from time to time, often occasioned by rumour and speculation over President Mugabe’s health, all of which have so far turned out to be false.
Nevertheless, it remains is an important question, whose answer is to be found partly in the Constitution of Zimbabwe and partly in the ZANU PF constitution. It is because of this that during its tenure as the ruling party, the ZANU PF constitution is not just a party document, but one of national significance since it has a bearing on this crucial constitutional question.
However, while the national Constitution is a public document which is easily accessible, getting access to an authentic and up to date version of the ZANU PF constitution is by no means an easy exercise. I have no reason to doubt the accuracy and authenticity of a copy of the party’s constitution that was availed to me by a reliable source for purposes of this analysis. This article summarizes issues pertaining to the succession issue as covered in the national Constitution and also considers the blind spots in the ZANU PF Constitution which could be a source of problems in the succession process. My view is that if these weaknesses still exist, they need to be attended to in order avoid a constitutional crisis.
What the national Constitution says on succession
The national Constitution describes a number of ways by which a vacancy may arise in the office of the President. It could be by death, resignation or removal from office.
Section 96 provides that the President may resign by giving notice to the Speaker of Parliament.
The President can be removed from office on the grounds stated in section 97 which are, serious misconduct; failure to obey, uphold or defend this Constitution; wilful violation of this Constitution; or inability to perform the functions of the office because of physical or mental incapacity. The exact manner in which these grounds are triggered and the process of removal will be the subject of a separate article.
Death of the President is naturally another way through which a vacancy arises and this is dealt with under section 14(4) of the Sixth Schedule.
It is unlikely that the ZANU PF dominated parliament will ever trigger or support the removal process pursuant to section 97. While resignation cannot be discounted, it is so far, only a remote possibility for a man who is determined to run for office again in 2018. It is what happens if he dies in office that is of immediate concern partly because it is unpredictable, unplanned and could precipitate a constitutional crisis if not handled properly.
Sixth Schedule not Section 101 applies
In reading the Constitution, I have observed that people often make the mistake of referring to section 101 of the Constitution which states that in the event of a vacancy, the first Vice President takes over to complete the remainder of the term. This provision is not applicable until 2023, when the system of electing Vice Presidents as running-mates of a presidential candidate becomes operational. These provisions were suspended for 10 years when the Constitution was adopted in 2013. I have previously explained the politics behind this postponement, which I believe was related to succession wars: https://alexmagaisa.com/2014/09/02/succession-under-the-constitution-of-zimbabwe/
From 2023, there will be a new system of presidential elections: each candidate will be required to nominate 2 running mates and if elected the 2 will automatically become first and second Vice Presidents in that order. Since they will be elected, if the President dies in office or is removed, the first Vice President automatically replaces him/her, the second Vice President will move up and a new Vice President will be appointed. The reasoning is that since such a Vice President is elected, he would have sufficient legitimacy to succeed his/her boss without going to an election should a vacancy arise. But section 101 will only start operating in 2023. Succession in the event of a vacancy is governed by the Sixth Schedule of the Constitution, which carries the transitional provisions.
Sixth Schedule: Last acting Vice President takes over temporarily
Succession is presently regulated by section 14 of the Sixth Schedule of the Constitution. Section 14(4) provides that in the event of death, resignation or removal of a President, the Vice President who was last nominated to act in the absence of the President will temporarily assume office for a period of up to 90 days.
During those 90 days, the ruling party is required to select a permanent replacement to complete the late President’s term of office. This means in the current set-up, if either Mr Mnangagwa or Mr Mphoko was the last acting President, he would become the temporary leader for a period of up to 90 days while ZANU PF selects a successor.
No need for a national election
This means Zimbabwe is not required to hold a national election to replace a President should a vacancy arise before a term of office has been completed. The ruling party will select the replacement in accordance with own internal procedures. This is precisely why the knowledge, understanding and clarity of ZANU PF’s constitution is a matter of national importance. What are these internal procedures? Are they clear and straight-forward? Are there any weaknesses? Can they be resolved? These are critical questions which have a bearing on Zimbabwe’s stability during and post-succession.
Vice Presidents are equal
Some people also often make the mistake of thinking that there is a constitutional hierarchy of Vice Presidents, that there is a “first” and “second” Vice President. This is totally incorrect. Under the current constitutional arrangement, which lasts until 2023, both Vice Presidents are appointed by the President on an equal basis in terms of section 14(2) of the Sixth Schedule of the Constitution. The issue of hierarchy of Vice Presidents will only start in 2023 when the system of electing a President and his/her running mates begins to operate. At present, while there might be a political hierarchy within ZANU PF, legally they are equal according to the national Constitution. If President Mugabe were to die in office, resign or be removed, the only question is, which of the 2 Vice Presidents was last nominated to act as President? It is that Vice President who assumes temporary control for up to 90 days.
No automatic successor
So the long and short of it is that at present, should a vacancy arise – by death, resignation or removal – there will be no national election to look for a successor but none of the current Vice Presidents will be guaranteed an automatic card to succeed President Mugabe either. They will have to contest for the position within the framework of their party. The last nominated acting President will only be holding the reigns temporarily while the party chooses the full-time successor. Nevertheless, it is arguable that whoever of the 2 Vice Presidents takes the reigns temporarily will enjoy the power of incumbency during the ruling party’s process of selecting a permanent successor. For those 3 months, he will be in control of the state and its apparatus and, to that extent, will enjoy a comparative advantage over rivals should he wish to contest in the selection process. This is why it is important to keep an official log-book on who between the 2 current Vice Presidents is the acting President whenever President Mugabe is out of the country. That log-book will have an important bearing on this critical constitutional question.
How clear is ZANU PF’s internal selection process?
As I have already pointed out, since the national Constitution does not set the rules of how a ruling party chooses a successor, the ruling party’s constitution becomes crucial to the resolution of the succession question should a vacancy arise. The clarity of this constitutional arrangement is therefore a crucial matter.
Are there succession provisions in ZANU PF?
The provisions on presidential succession in ZANU PF are conspicuous by their absence. I have not found any detailed provisions dealing with what happens when a vacancy arises in the office of the President. It’s as if the party never contemplated the possibility of a vacancy arising in that office. The closest the ZANU PF Constitution comes to contemplating a scenario of the President’s death is where it states in Article 5 section 26(2) that the party’s Secretary for Administration may call for an Extraordinary Congress when a vacancy has occurred in the office of the National President and the party is required to nominate a successor. This provision was inserted to link to section 14(4) of the national Constitution. Apart from that, no other provision in the party Constitution deals specifically with the succession issue. Chapter 4 of the party constitution deals with removal of party officers through a vote of no confidence and disciplinary action. However, the application of this Chapter to Mugabe is likely to be very remote, such is the power and influence that he wields in the party. Of course another option would be for the Extraordinary Congress to specially deal with the question of removal, if raised by the minimum threshold of members, but for the same reasons, this is unlikely to happen in Mugabe’s lifetime.
Calling Extraordinary Congress
The mostly likely scenario following Article 5 section 26(2) is that the selection of a successor would be done through convening an Extraordinary Congress, whose quorum is at least three quarters of members of Congress, which is higher than the quorum for an ordinary Congress which is just half of the members.
It is at this Extraordinary Congress that a successor would have to be chosen by the members, but how this process is conducted is also an issue which requires more clarity. If it were a national election, the reference point would be the Electoral Act, which is publicly available. Who constitutes the electoral college within the party is important as it determines who can or cannot vote. This is an important issue which affects whether or not the process is free and fairThe nomination rules – who nominates, who is nominated and how – have to be clear. The venues and timing of these processes also have to be clear beforehand. Whether or not the election will be by secret ballot or people will queue behind a preferred candidate will also have to be clear from the onset. Finally, who runs and supervises such an election also has to be clarified. Will the Zimbabwe Electoral Commission have a role in such a process? Is it desirable to involve a constitutional body like ZEC in a party process which has national significance? All these questions must be addressed beforehand to prevent confusion.
At present, guidance on the convening of such an Extraordinary Congress is provided for in Article 5 Section 26(2) which states that the Secretary for Administration is the party officer who is responsible for initiating the process of convening it. In the current set-up this responsibility would lie with Ignatius Chombo.
Who chairs the Central Committee?
Article 5 section 29 states that the Central Committee shall formulate the necessary procedures for the execution of the business of the Extraordinary Congress. However, as there will be no President who would normally chair the Central Committee, this role would fall on the 2 Vice Presidents in accordance with section 38 of the party Constitution. Section 46(1) of the ZANU PF constitution also provides that the 2 Vice Presidents shall deputise and exercise some or any of the President’s functions in his absence. However, as there are 2 Vice Presidents, this might complicate the issue if they clash over their roles, which is not a remote possibility given the factional battles within the party. While the national Constitution is clear that the last acting President fills in for the President if there is a vacancy, the party’s constitution does not clarify which of the two Vice Presidents takes over in the temporary period between the occurrence of the vacancy and the completion of the selection process. Does the temporary office holder at national level automatically become the temporary office holder in the party? Or is there a separate hierarchy within the party which guarantees only one of them to fill the gap when the office becomes vacant? These are internal rules which while private, become matters of public significance in the context of the national succession question.
Who will preside over the Extraordinary Congress?
Further, according to section 47(2) of the ZANU PF Constitution, the National Chairperson ordinarily presides over the Extraordinary Congress called in terms of section 26(2). However, at the moment the problem is that ZANU PF does not have a National Chairperson. It is unclear whether President Mugabe’s omission to appoint a party Chairperson at the 2014 Congress was deliberate. This apparent gap could also result in challenges.
Composition of the Extraordinary Congress: the electoral college
As I have pointed out, probably the most important question is the composition of the electoral college. If it were a national election, the rules are clear: every citizen aged 18 and above is entitled to vote as long as they are registered. However, this would be a mini-general election at party level and the rules on eligibility to vote are just as crucial.
Congress usually constitutes the electoral college, but this means who is entitled to attend Congress is a fundamental issue. To illustrate the problem let us look at the provision demarcating the composition of Congress. Section 23 includes a number of persons from various organs of the party. It is the provision in respect of the women’s league which is of interest as it highlights a potential challenge. Section 23(3) lists “members of the Women’s League” as members of Congress. But what does this mean? Who are “members of the Women’s League”? Section 146 of the ZANU PF constitution provides that every woman who is at least 18 years old is a member of the Women’s League. Read together with section 23(3), this provision suggests that all members of the Women’s League are also members of Congress. But surely, this wouldn’t make sense. It is likely that section 23(3) was meant to cover only the leadership of the Women’s League, consistent with other party organs listed in section 23, such as the Youth League where only “Members of the National Council of Youth league” are referred to as members of Congress under section 23(4). It is arguable that section 23(3) is a product of bad drafting which needs clarity. If not, it could result in different interpretations on the composition of the electoral college for the selection of a successor.
I have only referred a few items identified in the ZANU PF Constitution which raise sufficient concern over the selection process which must take place should a vacancy arise in the office of the President.
Chaos Scenario
How the selection process is done in the event of a vacancy arising remains unclear and subject to different interpretations and speculation. This is not helped by the fact that ZANU PF has no real experience of conducting elections for the party leader. Ever since Mugabe formally became the President of ZANU PF in 1977, he has never been formally challenged within the party. His ‘election’ over the years has been by popular acclamation. In any event, the nomination process was such that by the time Congress was held, he would be the only candidate. The ‘election’ was just a formality. This means the process of choosing a new leader will be new and uncharted territory for post-independence ZANU PF.
This absence of clarity is the underlying rationale for what I have previously referred to as the “Chaos Scenario”. In light of the serious contestations between factions within ZANU PF the internal selection process will be riddled with difficulty, uncertainty and conflicts. There is no reason to believe that the selection process will be peaceful, free and fair and that the outcome will be uncontested. Already there is bad blood between the G40 and Lacoste factions, which are known to exist despite persistent denials by the main actors involved. Mugabe’s departure, particularly if it is on account of death, is likely to precipitate panic, confusion and chaos within the party, with dangerous implications for the nation. Already, the security structure has waded into the succession drama. The possibility of the military taking a central role in the immediate post-Mugabe era is not far-fetched given the political interests of the older crop of the generals. I have also previously referred to the existence of what might be called the Chaos Faction, which is determined to exploit any chaotic situation that might arise.
Conclusion
There is still a chance for Mugabe to take pre-emptive action to avoid the Chaos Scenario. This would involve him taking a more central role in the selection of a successor during his lifetime. This person would establish firm roots under Mugabe’s watch, guidance and protection. The only problem is that Mugabe shows no signs of giving up on power and seems determined to die in power. But ZANU PF itself could do the nation a favour, prepare for the inevitable and ensure that its rules and internal procedures are clear enough for succession. Ordinary Zimbabweans have an interest in these rules and procedures principally because they are co-opted into the national Constitution by virtue of section 14(4) of the Sixth Schedule of the Constitution.
waMagaisa
