Coup and Constitution in Zimbabwe Part 2: A Path Back to Constitutionalism
In my previous post, I observed that the military action in Zimbabwe – whatever name it goes by – made a profound rupture in the rule of law and that this matters for the future. Since then, major developments have taken place. In Harare, thousands of Zimbabweans have marched to express support for the removal of President Mugabe, weaving their way through military vehicles. Solidarity marches took place in Cape Town, Pretoria, London, Ipswich, Perth, amongst other cities around the world. Yesterday morning, it was announced that the Central Committee of ZANU PF had removed Mugabe as its leader and expelled Grace Mugabe, simultaneously installing Mnangagwa as party leader. The ruling party also removed the second Vice President Mphoko. As of yesterday afternoon, the ruling party has given Mugabe an ultimatum: that he resigns as President by midday on Monday, or that they will institute impeachment proceedings against him. The President in his press conference yesterday evening did not resign, instead saying that he would preside at the party’s congress in December.
In this piece, I explore how the current situation can be steered back towards constitutional rule. I look in particular at how the Zimbabwean Constitution deals with the replacement of the President; the installation of a national transitional authority, and a delay in the elections.
In my previous post I referred to the possibility of Parliament passing an ‘emergency law’ to legalise the current limitations of rights, including detentions (s 87). A tribunal to review detentions would then have been required to be appointed (Second Schedule). With the current turn of events, an emergency law is unlikely. Before Parliament could do this, the President would need to proclaim a state of emergency (s 113). President and Parliament will not work together to do this, so the Constitution still governs without limitation.
The President is directly elected in national elections held concurrently with Parliamentary elections every five years (s 158). He ceases to hold office if he dies, resigns or is removed (s 95). He may be removed by Parliament before the end of his term on grounds that include misconduct or incapacity, the latter potentially attractive to ZANU.
Removal looks increasingly likely after the Central Committee of ZANU PF replaced Mugabe as party leader but he still has not resigned. The Central Committee purported today to remove Mugabe and Vice President Mphoko. However, in terms of ZANU PF’s Constitution, the party president is elected by a national poll of party members, and he in turn appoints two party deputies and the politburo (the ‘one centre of power’ principle). The Central Committee decision states that its decisions will be brought to Congress for ratification. Though there may therefore be some doubt about the legal effect of the Central Committee decision, is political import is clear – 201 of 300 members attended and voted unanimously.
Removal is a 3-step process under s 97: a resolution of a majority of the Senate and National Assembly sitting together; a nine-member parliamentary committee investigation; and a two-thirds vote of both houses. ZANU PF did narrowly have a two-thirds majority in the House of Assembly but not in the Senate. With the expulsion of several MPs from ZANU PF, the opposition MPs will be needed to secure the necessary majority. If the committee recommends removal, and two-thirds of the total membership of the Senate and National Assembly so resolve, the President ceases to hold office.
If the President dies, resigns or is removed, a Vice President would act as President until ZANU PF nominated a successor (Sched 6 s 14(4)). This provision in Sched 6 interestingly only applies to the 2013 election and any election within 10 years of it. (After that, a different process in s 101 will apply.) It was seemingly included to allow ZANU PF to nominate a successor in the event that Mugabe died in office. The current Vice President is Mphoko, although the Central Committee of ZANU PF has removed him as a party deputy. Until his removal on 6 November, Mnangagwa was First Vice President. If Mnangagwa becomes President, either by securing the reversal of his sacking or (more likely) as ZANU PF’s nominee to replace Mugabe, he will have the power to appoint two Vice Presidents and Cabinet.
Several reports have suggested the possibility of a national transitional authority, possibly including the opposition, and delaying the elections. A new President could appoint members of the opposition to Cabinet or even as Vice President(s). If a different transitional authority is contemplated – for example, restoring the position of Prime Minister – a constitutional amendment would be necessary. A constitutional amendment requires 90 days’ notice, a process of public participation and comment, and ultimately a two-thirds vote in each house of Parliament (s 328). If it is intended to create a new executive authority structure not provided for in the Constitution, this process would have to be followed. It would enable public participation in the consideration of the new structure, but the length of the process makes it unlikely in the current context. The Constitution requires elections to be held every 5 years (s 158). If any transitional arrangement affects that timing, a further constitutional amendment may be necessary.