Now that ZANU PF has resolved to commence impeachment proceedings against President Robert Mugabe, it is important to examine this constitutional process. There is a great sense of expectation among the people, fuelled by the high levels of desperation to see Mugabe’s departure after 37 years in power. However, it is important to shed light on what this process entails. While it is desirable to fast-track the procedure, there are certain fundamental matters of law and principle that cannot be side-stepped. These make the procedure more complicated than has previously been suggested.
Let us first examine the stages of the impeachment procedure:
First, there must be a resolution supported by a simple majority of the total membership of parliament recommending the removal of the president on one or more grounds stated in section 97 of the Constitution. These grounds are:
a. serious misconduct;
b. failure to obey, uphold or defend this Constitution;
c. wilful violation of this Constitution; or
d. inability to perform the functions of the office because of physical or mental incapacity.
A simple majority of the total membership of parliament means members of the National Assembly and the Senate must vote together sitting as a joint body. The resolution must be supported by more than 50% of the combined members of the National Assembly and Senate. They are 310 of them.
Second, once the first resolution has been passed, parliament’s Committee on Standing Rules and Orders must appoint a joint committee of both the National Assembly and the Senate consisting of nine members. The membership of this committee must reflect the political composition of Parliament. In other words, it must have proportional representation of the parties represented in Parliament. In this case, it must have representatives from ZANU PF, MDC-T and the other MDC formation. This committee must carry out the investigations to establish whether there is a justifiable ground for removal of the president.
Third, once the committee has completed its investigations, it makes a recommendation to parliament. If the recommendation is that the president must be removed, both the National Assembly and the Senate must sit together in a joint session to vote on the motion of removal. The motion of removal must be supported by at least two thirds majority of the total membership of MPs and Senators as a combined group. This means the motion of removal requires a special majority – a higher threshold compared to the simple majority required on the first motion to trigger an investigation. This high threshold reflects the gravity of the process of removing the president.
What are the implications of all this?
First, while fast-tracking the process to achieve the desired outcome is what most people would prefer in the present circumstances, this process cannot be achieved in 24 hours or even a week as has been suggested. It might not be as quick as people want. The motion to trigger an investigation may be easy to get because it requires a simple majority, but the investigation by the committee of nine is not a few hours’ or even one week affair. An investigation will have to consider and protect the rights of the investigated person, in this case, the President.
It’s important to note that this is the first time that the Zimbabwean parliament will be carrying out this procedure. It will have to set up clear rules, guided by the constitution, the declaration of rights and principles of natural justice. It can also learn from experiences in other jurisdictions. As experiences elsewhere demonstrate, impeachment proceedings are not a simple one-day or one-week affair. In crafting these rules, Zimbabwe must be guided not by emotions or the prevailing attitude towards Mugabe but by tried and tested principles. It is useful to know that whatever parliament does now will set and represent a precedent for the future.
Second, the requirement for a committee of nine and the process of investigation are mechanisms that are designed to ensure that the process of removing the president is fair and in accordance with constitutional rights and principles of natural justice. This includes the right to a fair hearing, the rights to be heard, the right to fair representation and the right to defend oneself. In other words, the word of the accusers is not enough to trigger a vote of impeachment.
Should the president’s constitutional rights and principles of natural justice be flouted, he may well challenge the process in a court of law. Courts are guided not by emotions but by the dry set of legal and constitutional rules and principles. As parliament would not want to be embarrassed, it will have to adhere to recognised rules and respect the rights of the accused president. He will be entitled to challenge the evidence against him and to cross-examine the witnesses. He too may have his own witnesses. If the allegation of one of being unable to perform his functions because of physical or mental incapacity, it means physical, medical, mental tests must be carried out, presumably by more than one expert. One of the grounds being cited against Mugabe is that he failed to adhere to due process when he sacked his Vice President. It would be ironic if his accusers do not recognise his right to due process.
The implications of all this are that this may well take more time than is being suggested. It could go on until and beyond the ZANU PF Congress in December. Mugabe could therefore use these constitutional and legal safeguards to buy more time until the end of his term next year by which time the question of impeachment could well be an academic exercise.
It is possible, of course, that the commencement of impeachment proceedings is designed not to follow the long course of law but is a tool for political purposes. In this case, it could work well in that it adds more pressure on Mugabe. It is possible that he might feel daunted by the prospect of an investigation by a committee of parliament. Mugabe has never liked being questioned by anyone, let alone being questioned by MPs. One of the conspicuous features of the system that he created since he became Executive President 30 years ago in 1987 is that he has never had to answer to parliament. Under the new constitution, he can be invited to answer questions in parliament but he is not obliged to attend. Ironically, when the constitution was being written, we pushed for a provision that would require the president to be directly answerable to parliament and to attend before it when called but it was the ZANU PF politicians who are now trying to get rid of him who resisted that clause. They will now realise that they were short-sighted.
Still, I believe this is as good an opportunity as any for parliament to use its power to invite him to come and answer questions. He will probably use his right to refuse but it will embarrass him before his peers in Africa who have been defending him.
The third issue is that since the nine member committee that carries out the investigations must include members of the opposition, it means Patrick Chinamasa was myopic and imprudent to arrogantly dismiss the role of opposition parties in this process. The opposition could easily drag and derail this process if ZANU PF chooses the path of arrogance as shown by Chinamasa. Chinamasa must eat humble pie, retract his unwise statements and apologise to the opposition and the people of Zimbabwe. But Chinamasa is not the only culprit. There are more ZANU PF characters who have allowed the illusion of success to affect their vision and have begun to conduct themselves in typically arrogant fashion.
In conclusion, while the political purpose of impeachment proceedings is not in doubt, the legal process is by no means a simple and quick affair. Parliament can, of course, regulate its own affairs, and may expedite the proceedings, but it is also obliged to act in accordance with and to protect constitutional rights. Mugabe may be an undesirable character to many people, but he too is entitled to those same rights provided for under the constitution. True, he may have denied many people access to their rights during his long tenure, but if he asserts them, the courts will probably move to protect them. The involvement of courts will delay the process as the pace of justice in Zimbabwe tends to move at the pace of a tortoise. Still, those pushing for his removal know that they are also creating a precedent. They won’t want to create a precedent that will come back to haunt them. The impeachment proceedings will be a political humiliation for Mugabe, but it is also important to keep public expectations in check.