Articles

Constitutional Provisions when the Office of the President falls Vacant

State media headlines this week have been screaming that president Mugabe is not on the deathbed. This is a desperate attempt to counter a wild fire of rumours and speculation fuelled by Mugabe's prolonged absence from Zimbabwe ostensibly because Mugabe is in Singapore on private visit to secure a postgraduate place for his daughter, Bona. My father did not escort me to register for my postgraduate studies in the UK. Questions have arisen as to what the Zimbabwe Constitution says regarding vacancy in the office of the president for whatever reasons.

Veritas Trust, a leading legal think tank, clarified the legal position, and I associate with that correct view, that the Speaker of the House of Assembly does not take over as Acting President.   Section 31 of the Constitution of Zimbabwe provides as follows:

Whenever the office of President is vacant or the President is absent from Zimbabwe or is unable to perform the functions of his office by reason of illness or any other cause, his functions shall be assumed and performed €”

(a) where there is only one Vice-President, by that Vice-President; or

(b)                   where there are two Vice-Presidents €”

(i)             by the Vice-President whom the President has designated for such an eventuality; or

(ii)           by the Vice-President who last acted as President in terms of this section, where neither Vice-President has been designated for such an eventuality in terms of subparagraph (i);

or

(c) during the absence or incapacity of the Vice-President or of both Vice- Presidents, as the case may be, by such Minister as may be designated for such an eventuality €”

(i)             by the President; or

(ii) by the Cabinet, where no Minister has been designated by the President in terms of subparagraph (i).

 

Presently Zimbabwe has two vice-presidents, both from Zanu PF, namely, Mrs Joyce Mujuru and Mr. John Nkomo.

In the event of the office of the president falling vacant because the incumbent has resigned or died during the lifetime of the current Inclusive Government set up under the Global Political Agreement (GPA), then section 20.1.8 of the GPA, as incorporated into the Constitution through amendment 19, kicks in. It provides that:

In the event of any vacancy arising in respect of executive posts (including president, prime minister, vice-presidents, deputy prime ministers, etc), such vacancy shall be filled by a nominee of the Party which held that position prior to the vacancy arising.

Simply put, should the office of the president fall vacant during the lifetime of the GPA, then it is Zanu PF as a party that will nominate a candidate to replace president Mugabe. There is no prescribed procedure or time-frame for the making of the nominations.

While the legal position is clear, what remains uncertain is whether various actors with vested interests would allow the constitutional provisions to be followed. There is evident jostling for power within Zanu PF with three main factions emerging, that is, the one led by vice-president Joyce Mujuru - who - at party level - is the most senior person to succeed Mugabe, then there is the faction led by Defence Minister Emmerson Mnangagwa, perceived to have some support from the security sector, and then the newest faction grouping around Constantine Chiwenga, the Commander of the Defence Forces.

Should anything suddenly happen to the president then it is most likely to be things fall apart - a bloodbath may ensure as various factions will move swiftly to position themselves for succession. Zimbabwe will be plunged into utter chaos.

It may very well be that Mugabe is indeed in Singapore to arrange a postgraduate place for his daughter, and not for health reasons. However, what is clear is that the regional bloc - SADC - must closely monitor developments in Zimbabwe to prevent chaos and ensure the maintanence of the constitutional order in the case of the eventuality. The deep entrenchment of the military in Zimbabwe's political and civilian affairs remains a fundamental factor that needs serious attention at a domestic and regional level.

 

Dewa Mavhinga, Regional Coordinator, Crisis in Zimbabwe Coalition [LLBs, LLM]

 

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