The resignation of former president of Zimbabwe, Mr Robert Mugabe on 21 November 2017 has left a vacancy in the presidency. This vacancy needs to be filled by a person who will complete the remainder of his term which still had up to 10 months to run. It is important to examine the implications of Mr Mugabe’s resignation as many people within and outside the country have been left wondering what happens next. All this is guided by the national constitution.
The filling of the presidential vacancy is regulated by section 14 of the Sixth Schedule to the constitution. Many people ordinarily reading the constitution are likely to be drawn to section 101 in the main text which is headed “Succession in event of death, resignation or incapacity of President or Vice President”. However, it is important to note that section 101 is NOT currently applicable. Its operation is suspended until after 2023. The applicable provisions are contained in section 14 of the Sixth Schedule as alluded to above. This schedule, which contains transitional provisions, is found towards the very end of the constitution.
Acting president and selection of successor
Section 14 of the Sixth Schedule provides that when a vacancy arises by reason of resignation and there is only one Vice President, that person acts as a President for a maximum period of up to 90 days. Where there are two Vice Presidents, the Vice President who was last nominated to act by the outgoing President is entitled to act as President. This does not mean the acting President must serve the maximum 90 days. During those 90 days, the ruling party is required to choose a nominee to fill the presidential vacancy until the end of the term. The nominee of the ruling party is therefore the successor.
In the current circumstances, since there was only one Vice President, Mr Mphoko, at the time that Mr Mugabe resigned, Mr Mphoko would ordinarily be the acting President for any period up to 90 days. However, there is a problem as it has been said that the whereabouts of Mr Mphoko are unknown or in any event, that he is currently not in Zimbabwe. If this is correct, it means constitutionally, there is a problem that needs a quick solution.
One way is that it could be filled by a minister selected by the cabinet in terms of section 100(c.)(ii) of the constitution. This provision allows the Cabinet to nominate a minister to fill in where there is no Vice President to act in place of the president. The only problem is that the current cabinet appears to be divided and in disarray. In the absence of the President or his Vice, the minister selected by his fellow ministers has the power to chair Cabinet in terms of section 105 of the Constitution. Thus while the succession issue is being settled, Cabinet could convene to choose a senior minister to fill the gap.
I should, at this point, wholly dismiss the notion peddled in some circles that the Speaker of the National Assembly can somehow be the acting President in the absence of a Vice President. No such provision exists in our constitution. The role of a Speaker is to receive the resignation letter and to publicise it, as he duly did, and to receive the name of a successor from the ruling party as explained below. He has no place whatsoever in the succession hierarchy.
Vacuum or de facto power?
However, it could be argued that the military has been the de facto power since Wednesday last week when it took over functions of government. De facto power refers to power as it exists in fact, regardless of whether it is legally right or wrong. The opposite is called de jure power (legal power). In this case, it would mean although the military does not have legal power, it nevertheless has de facto power in that it has effective control of the state. The implication of this line of reasoning is that there is no vacuum. This is what happened after Ian Smith’s Unilateral Declaration of Independence in 1965. The local courts held that although the UDI regime did not have legal power, it nevertheless had effective control of the state (de facto power) and for that reason recognised it.
Nevertheless, as this is controversial and the military does not want to be seen as having unlawfully taken state power, it is important that the vacancy in the presidency be quickly occupied by a proper legal authority.
Filling the presidential vacancy
A more effective way to solve the problem is to expedite the process of choosing a successor to complete the president’s term of office. As already pointed out, the ruling party is entitled to nominate a successor within the 90 day period during which a Vice President is supposed to be acting President. As there is no time-limit as to when such nomination should be done, it can be done at any time and in this case, as soon as possible. The national constitution does not specify how this nominee is selected by a ruling party. This means ZANU PF can choose whatever mechanism they want to select a nominee. They don’t have to convene a congress for this purpose.
President Mugabe resigned on Tuesday, which means a vacancy now exists and the 90 day period started running from the moment that his resignation was received and made public. ZANU PF can nominate the successor as soon as today (Wednesday). All they need to do select a nominee and to notify the Speaker of the nominee's name. The nominee assumes office as President after taking the oath. This oath must be taken by the nominee within forty-eight hours after the Speaker is notified of his or her name. The oath is taken before the Chief Justice or the next most senior judge available.
This means if ZANU PF selects a nominee or already has a nominee, they now have to notify the Speaker of the National Assembly. Thereafter, the nominee must take the presidential oath within 48 hours of the notification. In the present circumstances, it is important for ZANU PF to quickly nominate a successor to Mr Mugabe in order to reduce the period during which there is a legal vacuum in the presidency. If as is expected, Mr Mnangagwa is ZANU PF’s nominee, this process can be accomplished within hours and he can assume the presidency within the next 24 hours.
What constitutes a term of office?
After assuming office, the new President will serve the remainder of Mr Mugabe’s term until the general election which is due sometime between July and August 2018. If elections do go ahead as required by the constitution, the new president has less than 12 months to serve. Does this count as a term of office? The answer to this is no. According to section 91(2) of the constitution, a person is considered to have served a full term if he has had at least 3 years’ service as President. If a full term was considered to be 5 years’ service only, some would simply resign just before completing 5 year term, with the plan to come back and contest again, arguing that they did not serve a full term. However, if one has served less than 2 years, it is not considered a full term. In this case, the period that the new President will serve from now until the next election will not count as a full term. This means, should Mr Mnangagwa be nominated to serve until the next election in 10 months, he will still be eligible to serve two full terms.
Does Mr Mugabe still enjoy immunity?
He is now a former President and will be accorded the privileges and protections that are due to ex-presidents. The new government led by his former subordinates is likely to give him the package that is due to a former president. Whatever their views, the new president has an incentive to ensure that his predecessor is treated with respect as he too is bound to become a former president at some point. As a general rule, self-interest incentivises incumbents to look after former presidents.
An issue of concern to many people will revolve around the issue of immunity. One of the privileges of presidential office is that the incumbent enjoys presidential immunity. Section 98(1) states: “While in office, the President is not liable to civil or criminal proceedings in any court for things done or omitted to be done in his or her personal capacity”. Thus, while a president can be sued in his official capacity, he is protected from personal suits or criminal charges. However, this only lasts for the duration of the presidency. Section 98(2) provides that “Civil or criminal proceedings may be instituted against a former President for things done and omitted to be done before he or she became President or while he or she was President.” This means legal action or criminal charges can be brought against a former President for whatever he or she did before or during the presidency.
However, section 98 makes provision for a defence of good faith for conduct of the president in his or her official capacity while they were president. However, there is no presumption of good faith. The former president must prove that they acted in good faith. This is what section 98(4) provides: “In any proceedings brought against a former President for anything done or omitted to be done in his or her official capacity while he or she was President, it is a defence for him or her to prove that the thing was done or omitted in good faith.”
The implication of the presidential immunity provisions is now that Mr Mugabe is no longer in office, he is exposed to legal action which he has never had to face during his 37 years of power. There are many who might wish to go after him for any number of reasons. While members of his family never had local immunity, they had also relied on his office to secure protection against law-suits. Without the benefits of state power, they will now be exposed and aggrieved parties may now approach the courts with more confidence. As for the South African case in which Mr Mugabe’s wife faces legal action for the alleged assault of Gabriella Engels, the new government may well decide not to protect her. After 37 years in office, with all the legal insulation it provided, this is a whole new world for Mr Mugabe and his family.
In this weekend’s BSR, I shall do a more in-depth analysis of Mr Mugabe’s long career in politics and as leader of Zimbabwe.