An Emerging Hierarchy in Zimbabwe’s Presidium?

Alex T. Magaisa

When Zimbabwe’s two Vice Presidents were appointed in December 2014, someone asked whether there was a legal hierarchy between them. Was there a “first” Vice President and a “second” Vice President, they asked.

Indeed, some papers appear to have perpetuated this notion, as if it has a constitutional basis, by often referring to Vice President Phelekezela Mphoko as the “second” Vice President, thereby suggesting that Vice President Emmerson Mnangagwa is the “first” Vice President.

The purpose of this note is to explain the legal provisions in the Constitution on this aspect, but having clarified the legal position, we also want to lift the constitutional veil and assess whether, in fact, a political hierarchy is emerging. We shalI do this by looking critically at how the Acting Presidency has been handled during the periods when the President has been absent from the country.

Constitutional Equality of VPs

The legal situation of Vice Presidents is governed by s. 14(3)(b) of the Sixth Schedule of the Constitution. This provision states that where there are two Vice Presidents,

“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”.

This means President Mugabe can choose either VP Mnangagwa or VP Mphoko as Acting President during his temporary absence or inability to carry out his functions.

For the avoidance of any doubt, it is important to clarify that there is another provision in the Constitution, s. 100(1), which deals with the same situation. It states that when the President is away or unable to exercise his functions, the “first Vice President” takes over or in his absence, the “second Vice President” assumes those functions. The description of “first” and “second” Vice President under this provision is founded on a system where the President is elected along with his two Vice Presidents as his running-mates. However, this system is currently suspended and will not be operational until the 2023 Presidential elections.

In any event, s. 100(1) is currently inapplicable because it is superseded by s. 14(3)(b) of the Sixth Schedule. This is because s. 2 of the Sixth Schedule makes it clear that where there is a conflict between a provision of the Sixth Schedule and the rest of the Constitution, it is the provision of the Sixth Schedule which prevails. Here there is a conflict between s. 14(3)(b) of the Sixth Schedule and s. 100(1) and it is s. 14(3)(b) that has priority.

The effect of all this is that it is inaccurate and improper, as a matter of law, for anyone to describe the current Vice Presidents as the “first” and/or “second” Vice President. Constitutionally, they are of equal status.

Lifting the Constitutional Veil

Nevertheless, while this is the legal position, this being politics, we must go beyond this constitutional veil of equality and enquire whether, in fact, there is a discernible political hierarchy between the two Vice Presidents, which means one is on top of the other. What do events of the last two months suggest? We also try to answer why this question of hierarchy matters in the context of succession politics.

We will do an empirical analysis of how President Mugabe and the media have handled the appointment of the Acting President during periods of his absence from the country.

Since the appointment of the two Vice Presidents, President Mugabe has been out of the country three times.

First, he went on holiday to the Far East in December 2014, where he spent almost five weeks. He appointed VP Mnangagwa as Acting President during that long absence.

Second, a day after arriving back from the Far East, President Mugabe travelled to Zambia, for the inauguration of its new President, Edgar Lungu. It is not clear whether he appointed anyone as Acting President during that period.
If he was appointing them on a rotational basis, one would have thought Vice President Mphoko would have been appointed as Acting President. But enquiries have yielded no indication that he was appointed. In fact the media, including more tellingly, the State media continued to refer to him as Vice President Mphoko and did not address him as Acting President. This was markedly different from how the media has reported when VP Mnangagwa was appointed Acting President. It is safe to assume that either the President did not appoint anyone to act in his absence or that VP Mnangagwa continued to act as President in that period.

Currently, the President is in Addis Ababa, where he is attending the African Union Summit, and is taking over the Chairmanship of the continental body. Again VP Mnangagwa has been left in charge as the Acting President. The State media addresses him quite prominently as the Acting President.

It might be said it’s too early to judge, but there is a discernible pattern that is beginning to emerge here, whereby VP Mnangagwa seems to be earning priority over his counterpart. Being Acting President means he has been the man on the ground, the man trusted to hold the reigns of the State while the President is away.

On the other hand, VP Mphoko has been the man for routine errands – a few weeks ago, he was sent off to attend to the inauguration of the new Mozambican President, Mr Nyusi. Immediately thereafter, he was despatched to Botswana to attend the funeral of that country’s former Vice President.

He has not, as yet, been trusted to hold the reigns of the State in the President’s absence. If he has, then the State and its media have been surprisingly coy about it.

In the past, under the old Constitution, the situation was different because it provided a clear mechanism for the Vice Presidents to assume the Acting Presidency on a rotational basis. Therefore, when both Joshua Nkomo and Simon Muzenda were Vice Presidents, they would hold the Acting Presidency on an alternate basis. The new Constitution does not provide for that clear rotational pattern. Instead, it allows the President to nominate one of the VPs and there is no obligation that he must rotate them. He can choose the same person again and again. For now, instead of rotating the two, he seems to have a preference for VP Mnangagwa.

The implication of all this is that while at law there is no hierarchy between the Vice Presidents, in reality, a political hierarchy is fast emerging, with VP Mnangagwa, the man they call the crocodile, at the top of the food chain.

It might seem irrelevant to talk about the Acting Presidency but actually it is critical in the context of our politics and the age and heath circumstances of the President. It is vitally important in regard to succession politics. Why?

S. 14(4)(a) of the Sixth Schedule of the Constitution, which governs what happens at succession when the President dies, resigns or is removed from office, provides that should any of this happen, it is the Vice President who was last nominated as Acting President who assumes the Presidency for a temporary period of up to 3 months while the ruling party is selecting the permanent replacement.

All this means, that whenever a Vice President is appointed Acting President, that temporary position carries far more weight and meaning for the future of the country, than in ordinary circumstances. And so far, it seems the man trusted to hold that role is VP Mnangagwa. Perhaps, the thought is that VP Mphoko is still green in matters of statecraft and is being given time to learn the ropes. Or perhaps, he is just fulfilling the role of page boy at the wedding of a favoured senior cousin …

waMagaisa@yahoo.co.uk