IN the second part of his article on the topical issue of President Robert Mugabe’s succession, Derek Matyszak addresses the question of how the presidential nominee of Zanu PF is to be determined, a process that could be messy, and delves into the quagmire by drawing upon provisions in the Zanu PF party constitution.“You can have any colour as long as it’s black.” — Henry Ford.
Zimbabwe President Robert Mugabe will turn 89 in February 2013. Although party officials insist he is “as fit as a fiddle”, it is unlikely that he is immune to health problems which accompany any person approaching 90. Frequent, and seemingly urgent, trips to Singapore for specialised medical treatment in 2011 and 2012 suggest that Mugabe’s current spell of good health is precarious. Two articles have recently been written outlining some of the legal and political implications which might arise if Mugabe was to suddenly “depart the stage”, or become too ill to perform his duties.
The crux of those articles is that there are two provisions in Zimbabwe’s constitution which require consideration in the event of Mugabe’s demise. First, Section 28(3) (b) of the main body of the constitution stipulates that, on the president’s death or resignation, both Houses of parliament — the Houses of Assembly and Senate — will sit as an electoral college within 90 days to select a successor for the remainder of the presidential term. Second, a schedule to the constitution (Schedule 8) which gives effect to an inter-party political agreement (“the GPA”) to form an inclusive government provides in Article 20.1.10: In the event of any vacancy arising in respect of posts referred to in clauses 20.1.6 (the executive) and 20.1.9 above, (presidential appointments to the senate) such vacancy shall be filled by a nominee of the party which held that position prior to the vacancy arising.
Accordingly, in the event of Mugabe’s death, the vacancy in the highest post in the executive must be filled by a nominee of Zanu PF. However, it is unclear whether Article 20.1.10 of Schedule 8 operates in tandem with the provisions of section 28(3) (b) or overrides those provisions. If it overrides the provisions, the nominee of Zanu PF will be declared by the Clerk of Parliament to be duly elected as President of the Republic of Zimbabwe, and will be sworn in as president by the Chief Justice without any further ado.
However, while the provisions of Schedule 8 override all provisions in the main body of the constitution “to the contrary”, Article 20.1.10 is not necessarily contrary to the section establishing the Electoral College. Reading the two as operative conjunctively is entirely possible, and merely requires that the electoral college may only choose between candidates who are of Zanu PF.
Previous articles considering this issue, referred to above, did not address the question of how the nominee of Zanu PF is to be determined, but merely suggested the process might be messy. This article delves into the quagmire, drawing upon provisions in the Zanu PF party constitution.
Nominee of Zanu PF
The manner in which the nominee of Zanu PF is determined will depend upon whether an electoral college is to sit — in which event the provisions of the party constitution will interface with the state constitution — or whether the nominee determined by Zanu PF as a party will simply be sworn into office — in which event the provisions of the party constitution and the extent to which it is, or is not, applied will assume primary importance.
The process of determining the candidates in the event that an electoral college is convened is complicated by the poor drafting of Article 20.1.10. The phrase “shall be filled by a nominee of the party” is infelicitous. The use of the preposition “of” renders the intention unclear. Is the phrase to mean that the nomination must be made “by” the party which held the position? — which would then mean that the nominee could, in theory at least, be a member of the MDC. Or is the phrase to mean that the nominee must be “from” (ie belong to) the party which held the position? — which would then mean that the nomination need not be by Zanu PF as a party but that any person or entity (including the MDC) could suggest a Zanu PF nominee for the post.
The procedure for an election under the electoral college is set out in the fifth Schedule to the Electoral Act. Paragraph 3 thereof makes it clear that a nomination may be made by any 25 Members of Parliament signing and submitting a duly completed nomination form to the Clerk of Parliament. The Clerk is duty bound to accept nominations which meet all other requirements set out in paragraph 3(1) of the 5th Schedule. These requirements are that the candidate: (a) is a citizen of Zimbabwe by birth or by descent; (b) has attained the age of 40 years; and (c) is ordinarily resident in Zimbabwe.
The nomination form must be countersigned with the acceptance of the candidate. During the duration of the GPA, to these stipulations must now be added the requirement that the candidate is of Zanu PF.
The Clerk of Parliament thus will have the tricky task of determining what is meant by the phrase “of the party”. This issue could become extremely troubling and complex.
Where there is only one nominee, he or she must be declared by the Clerk of Parliament, presently Austin Zvoma, to be duly elected as President of the Republic of Zimbabwe without the necessity of a tally of votes. Zanu PF may thus seek to ensure that only one candidate is put forward on behalf of the party. However, even if this were to happen, the ambiguous wording of Article 20.1.10 does not guarantee that the post will not be contested. Three other scenarios may arise where there is no unanimity within Zanu PF for the nominee: Zanu PF MPs may defy the party and submit their own nomination of a fellow member of Zanu PF; or a member of Zanu PF might be nominated by MDC MPs, or a combination of MDC and Zanu PF MPs; or a compromise candidate who is not from Zanu PF might be the nominee of Zanu PF MPs. The Clerk of Parliament would have to determine, in all instances, whether the candidate so nominated is of Zanu PF. Where any nomination paper is rejected by the clerk of parliament on the basis that the candidate is not of Zanu PF, his decision may be subject to review by the Supreme Court at the instance of the rejected nominee.
The situation may be further complicated by the fact that any person defying an attempt by Zanu PF as a party to ensure that only one candidate is proposed might be expelled from the party as a result.
The candidate could then be considered to be no longer of Zanu PF, thus breaching the constitutional requirement of Schedule 8 of the constitution. The issue would be even more complex if the expulsion took place after the clerk of parliament had already accepted the candidate’s nomination papers, and, in all likelihood, in consequence thereof.
— To be continued next week
- Matyszak is a former University of Zimbabwe law lecturer, constitutional expert and researcher with RAU.