Blind Spots in Zimbabwe’s Succession Procedures
Alex T. Magaisa
In the last part, we said that the procedure under section 14(5) of the Sixth Schedule of the Constitution for selecting a successor to the President in the event of his resignation, incapacitation or death is that the political party which he represented at his election has the power to select and nominate a successor. We said that this procedure could cause some difficulties with the potential for threatening national stability if it was not handled carefully. Here, we explain the blind spots and weaknesses inherent in this procedure which Zimbabwe must be prepared for to avoid trouble.
At first sight, the procedure appears to be quite simple and straightforward: the party represented by the departing President has the power to nominate a successor. Everything being normal and equal, this should probably be simple and straightforward. However, as this article demonstrates, the reality is very different.
The constitutional clause on succession is based on an assumption that the political party of the departing President either has a known successor, whom it nominates upon the occurrence of any of the three circumstances leading to a vacancy or it has a clear and certain procedure for making such a nomination. At present, however, the identity of a successor in Zanu PF is by no means certain nor is the procedure for selecting and nominating such a successor.
To our knowledge, none of the political party constitutions have yet been amended to conform to the new national constitution on the succession procedure in the event of the death, incapacitation or resignation of the President. What they do have, of course are procedures for electing a leader and in the case of the two major political parties, Zanu PF and the MDC-T, the leader is elected by Congress, which is the main decision-making body of the respective political parties.
It is for this reason that the parties’ two respective congresses this year are important as they offer an opportunity for the membership to elect their leaders. In the case of Zanu PF, which is important for purposes of this piece on national succession because it is the ruling party, there has never really been an election since independence because its leader has retained his position via acclamation. To our knowledge, Mugabe has never been contested for the leadership since he took over during the liberation war. What is not clear is the procedure that Zanu PF will use to nominate a successor should resignation, incapacitation or death of the leader occur before the expiry of his term.
Will it be the Zanu PF Parliamentary Party, i.e. the elected Members of Parliament (National Assembly and Senate) that will convene to form an electoral college to select a nominee? Or will it be the members of the Zanu PF politburo who will convene an electoral college to find a nominee? Alternatively, will it be the members of the Zanu PF Central Committee, which is the party’s highest decision making body outside Congress, who will convene an electoral college to find a nominee? Or will Zanu PF convene an extraordinary Congress of the people at which members will elect a new leader who will automatically become its nominee to fill the presidency and the remainder of the term?
All these are possibilities and nothing is certain. Indeed, the problem that the nation could face is a serious squabble within Zanu PF about the procedure for selecting a nominee. This could happen because in light of the factional battles which have now become so open, one procedure might be regarded as giving an advantage to one faction over others. Therefore, different factions might prefer different procedures for selecting a nominee. This could be avoided if the party sufficiently prepares for this circumstance by stating clearly in its constitution or rules, the procedure for selecting a nominee to choose a successor in the event of any of these eventualities.
Some blind spots lie in the actual procedure itself. In terms of section 14(5) of the Sixth Schedule the relevant political party which has the right to nominate a successor, in this case Zanu PF, must notify the Speaker of the nominee’s name within ninety (90) days after the vacancy has occurred. This means the party would have the equivalent of three months to select a nominee. One could argue that an extraordinary Congress to elect the President could be called and convened within that period. This could result in a serious internal election on a scale never seen before in Zimbabwe. The contestation would be at a level never experienced in the history of elections in Zimbabwe.
Now, it is not beyond the realms of possibility that an aggrieved party might decide to contest the process and outcome of such an election on grounds of irregularities. Already, we have seen that Zanu PF is grappling with issues around internal elections in recent months, starting with the provincial leadership elections last year and more recently the Youth League and Women’s League leadership elections. None of the complainants has so far taken legal action to contest the results of those elections but when the stakes are high in a presidential election, one cannot discount the possibility of a legal contest before a court of law.
While the leaders themselves might be wary of taking legal action against their party or counterparts, there is always the possibility of taking a “Jealousy Mawarire-type” of legal action. This is where an ordinary individual, seemingly out of nowhere, takes legal action purporting a breach of his or her constitutional and legal rights and seeking redress from a court of law. Such a litigant would appear ordinary but in reality he would have been sponsored by a political heavyweight to take such legal action. He would be no more than an instrument of the politicians. This is in reference to application that was launched by one Jealousy Mawarire in 2013, for purposes of forcing the July 31 elections before the completion of reforms. It was done under the name of Jealousy Mawarire but in reality it was sponsored by Zanu PF, which was keen to force an election before reforms. The Supreme Court, which bought the plan, inaccurately read and interpreted the Constitution to suit this demand. The point here is that there is no reason why a Jealousy Mawarire, an individual sponsored by political heavyweights in Zanu PF, can spring some type of legal action and challenge the succession process alleging for example that his constitutional rights and freedoms are being violated or threatened.
Another blind spot is when the party submits its nominee to the Speaker and the oath is taken before the Chief Justice. The law is that the oath is taken within forty-eight hours after the Speaker is notified of the nominee’s name. This, of course, works where the party is undivided and there is no dispute over the nominee. Let us look at the worst case scenario, where a name is submitted to the Speaker but there is a dispute and a second name is also submitted by members of the same party. In that case, the Speaker will be faced with a situation that he cannot resolve on his own. The Constitution does not have a specific provision for handling such a scenario. Presumably, he would have to defer to the courts on such a matter.
Some might think this is far-fetched but an experience earlier this year suggests that the possibility of such a scenario cannot be overlooked. It happened in the dispute within the MDC-T, when the party wrote to the Speaker advising him of their intention to recall MPs whom it argued were no longer its members. A new group, calling themselves the MDC Renewal Team had written a pre-emptive letter to the Speaker seeking protection for MPs who were elected under the MDC-T ticket, arguing that they were the legitimate voice of the party. Faced with this situation, the Speaker said he was in no position to make a decision and referred the parties to court for a resolution. The point here is that the Speaker might himself with two rival nominations for a successor to Mugabe, in which case he would have to refer the matter to the courts.
The implication of all this is that the judiciary might end up playing an integral role in the succession process. The courts may be called upon to decide on various issues in this process revolving around the credibility and validity of the selection and nomination of a successor. This puts the judiciary at the centre of succession politics. The opposition has for a long time complained about the bias and lack of independence of the judiciary, which they believe is more inclined towards the executive and Zanu PF. The judiciary had a central role in the July 31 elections in 2013 – both before and after the elections. It is probable, based on this analysis, that the judiciary will have a similarly critical role in the selection of a successor in Zanu PF. The question is which of the factions has the judiciary’s favour and sympathies. Of course, the judiciary will protest that it is above politics and unconcerned with the internal political dynamics of political parties. But the reality may be otherwise and whichever of the factions has control of the judiciary will have a greater advantage in this process, which may well be played out and decided in the courts of law. The central role of the judiciary might explain the unusual burglary this week and theft of a computer from the office of the Chief Justice. It is no ordinary theft. The buildings that house the Chief Justice’s chambers are in a high security zone. It is impossible that a mere thief could have sneaked in and got away a computer and a television set without being noticed.
In all this, one must remember that there will be an Acting President in that 3 month period within which a successor is supposed to be chosen. And according to the constitution, the Vice President assumes office as Acting President when the sitting President resigns, dies or is otherwise incapacitated. This places Joice Mujuru in the driving seat during the succession process should any of the three circumstances occur.
Overall, the point that emerges from all this is that there are many blind spots in the succession procedure provided for in the constitution. It works on the assumption that everything works normally and does not cover for potential problems. It does not specify the actual procedure to be followed by the political party in selecting a nominee and this vagueness creates potential problems. The political party in power, in this case Zanu PF needs to prepare for this eventuality and ensure there is a clear and certain procedure and that disputes are minimised otherwise they compromise national stability and security.