Big Saturday Read: Law, politics and the pitfalls of succession in Zimbabwe
Judging from the enquiries received regularly from journalists and the number of flawed legal references in the media, there is still a great deal of confusion over the legal position regarding presidential succession in Zimbabwe. Although I have addressed this issue in the past, I feel compelled to re-visit it in an effort to provide clarity on the legal aspects of succession: what the constitution says in respect of succession in the event of a vacancy arising in the presidency.
More importantly, I wish to shed light on the pitfalls associated with the succession model as provided for in the Constitution. I believe anticipating a problem is the first step in the process of solving it. In due time, the course of events may prove my fears to be exaggerated, but far from this being a source of embarrassment, that would be a comfortable outcome. My hope is that issues highlighted in this article act as an early-warning signal, helping to pre-empt problems and preparing key actors with tools to avert a potentially chaotic scenario.
I also provide a brief account of the constitution-making process, which may be attractive to those interested in constitutional history and the interaction between law and politics.
Two parts dealing with succession
The Constitution deals with the issue succession in two parts and this is the main source of confusion. The first procedure is provided for in section 101 of the Constitution and the second is provided for in Schedule 6 of the Constitution. However, the confusion can be easily resolved by making it clear that the two procedures are designed to apply at different times. In other words, one of the two procedures is currently applicable, while the other is suspended and will only start applying after 2023. I will deal with each part, starting with the one that is currently suspended but if so often mistakenly viewed and presented as the legal position on succession.
Section 101 succession procedure
Most people who read the main text of the Constitution are naturally drawn to this provision, which they believe to be the clause that deals with succession. This is perfectly understandable given its title: “Succession in event of death, resignation or incapacity of President or Vice-President”. Someone who does not have close knowledge of the Constitution has no reason to suspect there is another provision tucked away in a different part. We shall turn to this other provision shortly but let me dispose of this one first.
In terms of section 101, if a vacancy in the presidency arises by reason of death, resignation or removal from office, the “first Vice-President” takes over and completes the remainder of the term of office. This clause has also caused some confusion as to who is the “first Vice President” between Vice President Mnangagwa and Vice President Mphoko as if the provision applies, that person would naturally take over upon the death, resignation or removal of current leader, President Mugabe. This confusion is in fact, unnecessary as at present there is neither a first nor a second Vice President. Contrary to representations in some media that Mnangagwa is the “first Vice President”, at law, the two men are of equal status.
The idea of a first or second Vice President is predicated upon a system in which the President is elected along with two running mates, one of whom would be the first and the other the second running mate. Upon election, they automatically become the first and second Vice Presidents, in that order of hierarchy. This procedure of electing the President and his Vice Presidents is provided for under section 92 of the Constitution. However, the 2013 presidential election did not use that system (and neither will the 2018 election.) The President was elected on his own and he chose his Vice Presidents. The reason for this is very simple. The operation of section 92 and therefore the presidential running mates model is suspended until 2023.
All in all, sections 92 and 101 are programmed so that they DO NOT APPLY until the 2023 elections. The reason for this is to be found in a schedule attached to the Constitution, namely Schedule 6 and it is to that part that I now turn. But before I do so, I must re-emphasise that until 2023, the procedure for succession outlined in section 101 is completely inapplicable. It should never be quoted as the law for presidential succession until after 2023. Later in this article, I shall explain the politics behind the suspension of both sections 92 and 101 – the running mates model and allied succession model. I would suggest however, that it might be a good idea for those in charge of legislation to include an editorial note accompanying constitutional provisions that are not currently operational so that citizens are not unnecessarily confused when they read the Constitution. It makes perfect sense to include editorial notes to the effect that such and such a section is not yet operational.
Schedule 6 succession procedure
It is this schedule that specifically suspends the operation of sections 92 and 101 in regard to the election/appointment of Vice Presidents and succession to the presidency. It is the provisions in this schedule that are currently applicable and should be referred to when discussing the legal aspects of succession. Section 14 of this schedule is headed: “Special provision for election and tenure of first President and appointment of Vice-Presidents”.
For the first two elections after the adoption of the new Constitution in 2013, presidential candidates are not required to nominate running mates. Rather, upon election, a President is entitled to appoint a maximum two Vice Presidents. It is important to note that there is no strict obligation to appoint 2 Vice Presidents. The law is that he can appoint “up to two Vice Presidents”, which means 2 is only a maximum but not a mandatory requirement. Thus, the President can appoint 1 Vice President and still be in compliance with the Constitution. This is why President Mugabe appointed former Vice President Joice Mujuru as the only Vice President in August 2013. It was also legal when he appointed the current Vice Presidents Mnangagwa and Mphoko in December 2014 after sacking former Vice President Mujuru.
Besides the election procedure, there are three major differences between the Schedule 6 system and the section 92/101 system described earlier in the last part.
Sacking the Vice President
The first difference is that while it is easier for a President to sack a Vice President in terms of the Schedule 6 system, it is much harder to do so under the section 92/101 system. A Vice President appointed under Schedule 6 can easily be dismissed because he or she serves at the “pleasure” of the President. This means the President has unlimited discretion to hire and fire his deputies as he or she wishes. This is why it was easy for President Mugabe to fire Vice President Mujuru in December 2014. She served at his pleasure and the moment he was displeased with her, for whatever reason, he was entitled to dismiss her. Likewise, current Vice Presidents Mnangagwa and Mphoko serve entirely at his pleasure. Mugabe can fire them at any time.
However, a Vice President who elected as a running mate of the President is harder to remove as he or she can’t be fired by the President in the same way. That Vice President does not serve at the pleasure of the President but has a direct mandate from the electorate since he/she is elected. In fact, under that system, the Vice President can only be removed in exactly the same way that the President can be removed, per section 97 of the Constitution. If former Vice President Mujuru had been elected as President Mugabe’s running mate in 2013, it would have been much harder, though not impossible to remove her, as he did in December 2014.
Hierarchy of Vice Presidents
The second difference relates to the hierarchy of Vice Presidents. Whereas Vice Presidents elected as running mates under section 92 succession procedure are ranked as first and second respectively, there is no such ranking under Schedule 6. Under Schedule 6, if 2 Vice Presidents are appointed as is the current case, there is neither a first nor a second between them. This is why section 14(3)(b) provides that in the case of 2 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 exercise his or her official functions through illness or any other cause.” Therefore, the current Vice Presidents Mnangagwa and Mphoko are equal under the law. There might be a political ranking within their party which distinguishes them but that has no legal relevance under the national Constitution. The labelling in some instances of Vice President Mnangagwa as “first Vice President” has therefore been completely misguided and legally baseless.
I should also add that as is evident in the quoted words, there is also no obligation on the part of the President to rotate the appointment of Vice Presidents to act in his or her absence, although President Mugabe has traditionally rotated his subordinates whenever he is absent. This is consistent with their equal status but it has also created a legitimate expectation between the Vice Presidents and among citizens that he would give his subordinates equal turns. If the President were to suddenly change and start re-appointing one Vice President to act in his absence more regularly than the other, this could be interpreted as a sign of favouritism towards that particular Vice President. This is why keen watchers of the succession drama are always interested to know who is acting whenever Mugabe is absent. But as we shall soon see, the question of who is appointed to act in Mugabe’s absence is very vital information in the unfolding succession drama.
The third difference is in respect of the succession procedures. I have already described the succession procedure under the currently suspended section 101 and there is no need to repeat that, save to say it is quite clear and straightforward: if there is a vacancy, the first Vice President takes over and completes the term. On the other hand, the succession procedure under Schedule 6 is an appearance of simplicity but it actually has the potential for complexity. It is specified in section 14(3) of Schedule 6 and it provides that in the event of a vacancy in the presidency, two things must happen: first, the Vice President who last acted immediately takes over as Acting President until a new President assumes office and second, the ruling party has up to 90 days, the ruling party to nominate a successor. In simple terms, this under the current system means the ruling party has the power to choose a successor. But on closer analysis, this apparent simplicity is highly deceptive.
To explain the pitfalls, let me deal with each aspect section 14(4) of Schedule 6 one by one:
Who was the last nominated to act?
It states that the Vice President “who was last nominated to act” will act as President until a new President assumes office after nomination by the party. While the interpretation of the words “who was the last nominated to act” should be straightforward as it would simply require looking at who was the last Vice President to act, it could take something very simple to complicate matters, such as a claim that the President nominated another Vice President just before his demise. Thus the first point of dispute could be as to the question of who was the last Vice President to act. This could be resolved politically but in the event of it spiralling out of control, it might require judicial interpretation.
There is also the question as to whether there is need for any ceremony or ritual to accompany this first stage of the succession process. Presumably, the Acting President would be required to take the full presidential oath, which process must be presided over by the Chief Justice or in his or her absence, the next available senior judge.
How does the ruling party nominate a successor?
The second and most problematic issue arises from section 14(4)(b) of Schedule 6, which provides that:
“the vacancy in the office of President must be filled by a nominee of the political party which the President represented when he or she stood for election.”
As stated, this means the ruling party nominates the successor. It looks simple but how exactly does the ruling party go about this process of nominating the successor? Who qualifies as a nominee of the ruling party? Are there clear procedures? In the specific case of ZANU PF, being the ruling party, does the nomination of a successor have to be done by an Extraordinary or Special Congress? Can it be done by the Central Committee or even by the Politburo or another body?
There are no easy answers to these questions. Everything is left to the ruling party and its internal procedures of nomination. But what if the ruling party’s procedures are vague and subject to contestation by warring factions? It is common cause that the ruling party, ZANU PF is severely divided along factional lines. Previous analyses of the ZANU PF Constitution have shown that it is far from clear on this particular matter. The huge pitfall is that this could result in serious disputes which could cause chaos.
Why the Speaker and the Chief Justice matter
All this is further complicated by the fact that under this procedure, the ruling party is required to notify the Speaker of Parliament of name of its nominee and within 24 hours the nominee is required to take the presidential oath. This means all that is required is notification of the Speaker of Parliament as to who the nominee is and a quick ceremony of taking the oath before the Chief Justice. As to who is legally authorised to notify the Speaker remains vague. Presumably this has to be a duly authorised officer of the party but who would this be? What if the Speaker receives more than one nomination purportedly from persons representing the party? The Speaker has no decision-making powers, his duty is merely to receive the nomination. But what is he to do if there is more than one nomination? This might require judicial intervention.
In the past, when faced with questions of recalling MPs, the Speaker has been inconsistent. In the case of the MDC-T in 2014, the Speaker decided that the matter was not in his hands and deferred to the courts. However when the matter came up again in 2015 involving expelled ZANU PF MPs, the Speaker was quick to agree that they had lost their seats, notwithstanding the fact that they were challenging their expulsion in court. It is therefore unclear what the Speaker would do when faced with conflicting instructions from his own party but presumably he would refer it to the courts.
Either way, all this demonstrates why the Speaker and judges have important roles in the succession process. It also gives context and some light regarding the unseemly and embarrassing dispute pitting the Ministry of Justice and Vice President Mnangagwa against former Chief Justice Godfrey Chidyausiku and the Judicial Services Commission over the appointment of the new Chief Justice. It also explains the current efforts to amend the Constitution in order to give a President greater control over the appointment of the Chief Justice. A major reason is that whoever controls the Chief Justice and the judiciary will have an upper hand in the succession race, since the judiciary is likely to be called upon to resolve disputes over succession.
One has to remember that if the implementation of this succession procedure becomes necessary it is likely that this would be in the event of a vacancy arising through death of the incumbent. With President Mugabe stubbornly clinging on to office, the likelihood of a vacancy arising by voluntary resignation or removal is too remote and improbable. This leaves the succession drama to play out after his demise and it is fair to anticipate that it will be a tense period of high emotions and quite possibly, confusion. It’s unlikely to be a smooth transition, given the mounting tensions between the contesting factions within ZANU PF. This article has highlighted the potential pitfalls which those in decision-making positions ought to be prepared for.
The politics behind the mess
But why is the clear and straight-forward succession mechanism in section 101 suspended until 2023? Clearly, it would have ensured a smoother and more straight-forward transition, should the need ever arise. The answer to that question also lies in the succession games that were already in play before the 2013 elections. To understand why we have this current scenario, I have to give an account of my observations of the constitution-making process. As most loyal readers of this column already know, I worked with the COPAC team that crafted the new Constitution. I worked as a technical adviser with the MDC-T team comprising Douglas Mwonzora, Tendai Biti, Elton Mangoma, the leaders of a larger team. For that reason, I speak from the vantage position of someone who had a ringside view of the process.
The suspension of the section 101 succession procedure is directly connected to the suspension of the section 92 procedure of electing the Vice Presidents as running mates of the presidential candidate. There were two views over the handling of succession in the event of a vacancy: the first was that the Vice President would automatically take over and the second was that there would be a national election to find a replacement. The Constitution was negotiated against the backdrop of election fatigue and also serious aversion towards elections given the disastrous election of 2008. The atmosphere was decidedly anti-election. The antipathy towards elections was not only because of the violence but because of the costly nature of electoral processes. There was a general concern that the country was in a permanent election mode, which was not healthy for development. All this was very influential and steered the group towards a succession solution that did not involve more elections.
This left automatic succession by the Vice President as the most viable and cost-effective option. However, we were concerned that it would be undemocratic to give the presidential mandate to an unelected person, since the existing model was that of a Vice President who was an appointee. This gave weight to the view that it would be far better to have an elected Vice President as opposed to an appointed one. An elected Vice President would have a better claim to take over and complete an unexpired presidential term than an appointed one. There was already a similar model in the US and closer to home, in Ghana and Malawi. It is important to note that negotiations were taking place shortly after the President Joice Banda succeeded the late President Bingu Wa Mutharika in Malawi. There was no election in Malawi and Vice President Banda succeeded President Mutharika, although there had been delays and attempts to circumvent the Malawian Constitution. By contrast, Zambia had gone through an election to replace President Levy Mwanawasa after his death in office.
Hence the running mate model was seen as a more attractive model, certainly more cost effective and if managed properly offered opportunities for smooth transition. However, ZANU PF insisted on the idea of a co-Vice Presidency, which resulted in section 92 providing for 2 running mates and 2 Vice Presidents, quite a difference from the US, Malawian or Ghanaian models. This resulted in section 101, providing for succession by the first Vice President in the event of a vacancy arising in the presidency. It would have been almost perfect if it had ended there. Unfortunately, it didn’t.
Change of tune
Later, when the matter went to a higher committee in the negotiating process, ZANU PF which had actually championed the running mates system changed its tune. Instead, they proposed a different model. The eventual compromise was to keep the running mates system and succession model in sections 92 and 101 in the main Constitution but to have a 10 year transition period in terms of which both sections would be suspended for a decade. Meanwhile, during the transitional period, the Vice Presidents would be appointed by the President and to avoid elections in the event of a vacancy, the ruling party would be allowed to nominate a successor in the event of a vacancy arising. This latter proposition was a replication of provisions of the Global Political Agreement (GPA) which was in operation during the time of the negotiations. The current succession model is therefore an extension of the model that was used during the period of the Inclusive Government. It was an quick-fix rather than an ideal solution.
But why was there a change of heart in ZANU PF when they had backed the running mates’ model of electing the President and Vice President? I believe it had everything to do with internal succession battles and the agenda of frustrating the ascendancy of Joice Mujuru who was President Mugabe’s deputy at the time. If the running mates model had been adopted, Mugabe would have been forced to pick Joice Mujuru as his first running mate since she was the only Vice President after the death of John Nkomo. The alternative of ditching her and picking someone else would have been unattractive because it would have split his party at a time when unity was very important going into a watershed election in 2013. ZANU PF and the Mnangagwa faction in particular must have realised their error of proposing the running mate model as that would have placed a rival at an advantage and their leader in a dilemma before a crucial election. The suspension of the running mates clause was a huge reprieve for Mugabe and a serious setback for Mujuru.
But why did the opposition parties compromise on this issue? I suspect personal interests may have gotten in the way of good reason. While the running mates model offered the bright potential of dividing ZANU PF before the 2013 elections, there were also elements in the opposition who were not enamoured with the model in 2013 since it would strengthen competitors for succession in their own party. Those under Tsvangirai were also already positioning themselves for a post-Tsvangirai future and the closer one was to the top, the better. The running mates model would strengthen whoever in the MDC were nominated by Tsvangirai as his running mates. Once news of the running mates model emerged some senior MDC leaders were already positioning themselves for a slot, eyeing the prospect of becoming Vice President in a new government. It must be remembered that around that period, levels of confidence were very high within the MDC. Like Joice Mujuru, Thokozani Khupe was better-paced to be nominated the first Vice President, which would make her the favourite to succeed Tsvangirai in the event of a vacancy arising. This may not have had the favour of internal competitors.
The irony was that both of these women – Mujuru and Khupe - who stood to benefit the most from the running mates clause were not directly involved in the constitutional negotiations. At least Mujuru had an ally in Nicholas Goche in a higher level inter-party negotiating committee. For this alliance, Goche was eventually fired when after Mujuru was sacked in 2014. However, without stronger representation, the running mates model was suspended for a period of 10 years in favour of the appointment model.
We were disappointed when this outcome was relayed to us after working hard to ensure the 2013 elections would be held under a different model. It’s fair to say, with the benefit of hindsight, that the running mates model and a perfectly sensible, clear, straightforward and chaos-free succession model were sacrificed at the altar of succession politics. This is why we face the spectre of a controversial and chaotic succession process.
Finally, after all has been said and done, the success of the succession process in the event of vacancy arising is dependent on many factors, well beyond the law. The constitutiona provisions discussed in this article are important, but they do not guarantee the success of a succession process. Zimbabwe can learn from the experience of other countries in the region. Ghana, increasingly emerging as a mature democracy on the continent handled a smooth transition in 2012, after the death of President John Atta Mills. But they have a clearer and more straightforward succession model, much like our section 101, which regrettably is currently suspended. Malawi had a few hiccups but eventually, Vice President Joice Banda was able to succeed President Mutharika. Zambia, which follows a different model where an election must be held to select a successor has handled two successful transitions after the deaths of President Mwanawasa and President Sata.
One thing for sure is that in all cases, succession is dependent on the support of key institutions and actors on the political landscape. Institutions such as the judiciary, military, civil society, churches, the media, even Cabinet are critical in the succession process. There must be national convergence towards supporting the constitutional process and peaceful transition, including visible public rejection of any attempts to subvert the constitutional process. The role of ECOWAS in the transition in the Gambia is an important reminder of the role of regional peers and institutions in supporting peaceful transitions. In this regard, although SADC’s reputation has suffered among Zimbabweans, it can still play an important role and it must keep a watchful eye on events in Zimbabwe given the precarious nature of the succession issue.