THE Research and Advocacy Unit (Rau) has previously had occasion to draw attention to various deficiencies in the Zanu PF party constitution.
However, the Zanu PF annual national conference held last month highlighted lacunae in the party’s governing charter relating to the vice-presidents and, in particular, to provisions which ought to govern their terms of office.
This is so because of the numerous reports of a plan by one faction within Zanu PF to engineer the replacement of Emmerson Mnangagwa as Vice-President and install First Lady Grace Mugabe in his stead. The means to do this would be by reinstating the provision that one vice-president must be a woman — a requirement removed in the course of the amendments made to the party constitution at the 2014 congress.
Until these amendments, the party constitution provided that the vice-presidents were elected by congress, held every five years, after receiving nomination by at least six of the 10 provinces.
This provision was amended to provide that “soon after” the election of the president and central committee at each congress, the president must “during the sitting of the congress, appoint from the newly-elected central committee, two (2) vice-presidents and second secretaries”.
The Zanu PF constitution, however, has never contained specific provisions, as it ought, and as is usual, relating to the tenure of office of the vice-presidents.
Compare, for example, the state constitution which sets out specific procedures to be followed should the president or a vice-president die or retire while in office and sets out specific grounds for removal from office: serious misconduct; failure to obey, uphold or defend the constitution; wilful violation of the constitution; or inability to perform the functions of the office because of physical or mental incapacity. In the case of the vice-presidents, these provisions relating to removal from office will only apply when the vice-presidents are elected as running mates with the president in a general election.
At present, the vice-presidents are simply appointed by the state president. But even in this case, the constitution specifically provides that they hold office at the president’s pleasure.
The Zanu PF constitution, which now likewise provides that its vice-presidents are appointed by its president, does not contain even this much relating to their tenure.
Although it is usually assumed that the person who has the power to appoint has the power to dismiss, in the case of the Zanu PF party constitution, this issue is complicated by the manner in which clauses relating to the appointments of the vice-presidents are drafted.
The Zanu PF party president does not have an unfettered power over the appointment of vice-presidents.
Firstly, the vice-presidents must be appointed from the “newly-elected” central committee and elected during the sitting of congress. Secondly, unlike the state constitution, it is a requirement of the party constitution that there must be two vice-presidents and the president cannot, constitutionally, appoint only one.
Reading these two provisions together, that the vice-presidents must be appointed at the five yearly congresses and that there must always be two, suggests that there is no power to remove a vice-president between congresses.
However, this is clearly merely on account of a gap in the charter. There is obviously the possibility of a need to replace a vice-president between congresses.
The resolution by the Zanu PF Women’s League that one vice-president must be a woman is, in essence and an attempt to write clauses into the party constitution to plug a gap which should be filled by clauses relating to when a vice-president can be removed from office.
However, for this to be done in a legally correct fashion, the lacunae should be filled by properly implemented constitutional amendments approved by congress, extraordinary or otherwise, and not by resolutions made at a conference.
However, the Mnangagwa faction was quite right to be nervous ahead of the conference and to call for the party constitution to be respected. The need for the vice-presidents to be appointed during the sitting of congress was breached by President Robert Mugabe within days of the introduction of the requirement, with both party vice-presidents being appointed by Mugabe several days after the December 2014 congress had ended, thus avoiding the need to gauge the approval, or respond to any disapproval, of his choice by delegates.
Furthermore, in the past, the requirement that there must be two vice-presidents has simply been ignored when a vacancy has arisen on account of the death of an incumbent.
For example, after the death of party vice-president John Nkomo on January 17 2013, the post was simply left vacant until the next congress, nearly two years later.
As the 2014 Zanu PF congress unambiguously demonstrated, constitutional niceties are subject to the trumping power of political muscle.
Thus perhaps the most important observation to note about the 2015 Zanu PF conference is that those seeking the elevation of Grace to the vice-presidency (which may include her husband), do not (yet) have the political muscle required to brush the party constitution aside.
Matyszak is a lawyer and senior researcher at Rau in Harare.