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Drop
dead beautiful? Legal notes on death and the President
Derek
Matyszak, Research and Advocacy Unit Zimbabwe
September
06, 2010
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ZANU PF supporters
have on several occasions expressed the wish that President Robert
Mugabe die in office. With speculation about Mugabe's ill
health rife and more plausible than usual, it is interesting to
consider the legal position and what ought to happen in terms of
the current constitution if Mugabe were to die today.
Section 29(3)(b) of the
Constitution
provides that if the President becomes incapable of performing the
functions of his office by reason of mental or physical incapacity
he will cease to hold office if a joint committee of the Senate
and House of Assembly formed at the request of one third-of the
members of the House of Assembly so recommends and the recommendation
is supported by two-thirds of a joint sitting of both Houses. If,
however, Mugabe dies suddenly, so that the question of the degree
of his debilitation is not an issue, Section 31 of the Constitution
provides that the duties and functions of the President shall be
assumed temporarily by a Vice-President. Where there are two Vice-Presidents,
responsibility is assumed either by the Vice-President designated
by the President for such eventuality or, in the absence of such
designation, the last Vice-President who acted as President in the
President's absence.
These provisions were
supplemented in 2007 by Section 2 of Constitutional
Amendment No 18, drafted specifically with the possibility
of Mugabe's sudden death or retirement in mind. Section 28(3)(b)
of the current constitution now provides that if the Office of the
President becomes vacant by reason of death, resignation or removal
from office, the two Houses of Parliament will come together as
an electoral college to elect a new President. The new President
will remain in office until the next election. If these provisions
are implemented, given the intense jockeying that is likely to take
place to fill this immensely powerful post, the procedure to be
followed is of some interest.
The election of the President
through the Parliamentary Electoral College must take place within
ninety days of his death or resignation. The procedure to be followed
is set out in the Fifth Schedule to the Electoral
Act [Chapter 2:13]. The Clerk of Parliament plays an
extremely important role in this regard. He sets the date of the
election on not less than fourteen days' notice and simultaneously
invites nominations for the post from members of Parliament. Candidates
must have at least twenty-five nominators and must signify their
acceptance of the nomination in writing. The Clerk of Parliament,
whose decision is subject to review by the Supreme Court, may reject
any nomination which does not comply with the Act. Where there is
more than one candidate a vote then takes place, with the House
of Assembly as the preferred venue, and presided over by the Chief
Justice. Half the members of the Electoral College constitute a
quorum, but, if there is no such quorum, the matter is simply adjourned
for an hour and those present thereafter constitute a quorum.
Voting is not secret.
The Chief Justice directs persons to gather in blocs in parts of
the House allocated to each candidate and for whom they wish to
vote. One member of the bloc is appointed to compile a register
of number of persons and their names in his or her candidate's
bloc. The tally of supporters in each bloc is then given to the
Chief Justice, who announces the figures. If no candidate receives
an absolute majority of votes, the candidate with the least number
of votes is eliminated and the process repeated until such a majority
is achieved. If there are only two candidates, who receive an equality
of votes, the process is repeated over and over, with such adjournments
not exceeding 48 hours as the Chief Justice may determine, until
one candidate has attained majority; the Chief Justice announces
that candidate as duly elected as President. Lists of those comprising
the voting blocs, indicating who voted for whom is entered into
the Journals of both Houses.
However, since
the enactment of Constitutional
Amendment No. 19 (which incorporated, almost verbatim, Article
20 of the appallingly drafted Interparty Political Agreement, now
commonly known as the GPA),
little is clear and free from ambiguity in relation to the composition
of Zimbabwe's government.
One of the most glaring
anomalies is that Zimbabwe's Constitution is unique in that
it does not merely provide that Zimbabwe is to have a president,
but it is a constitutional requirement that the President is a specific
individual, Robert Gabriel Mugabe. On the death of Mugabe there
can be no compliance with this provision. It is unusual that constitutional
provisions are drafted in such a way that their implementation may
be avoided on account of vis major (an act of God). However, from
this provision it may be inferred that the legislature did not contemplate
that the post of presidency would be occupied by any other person
during the subsistence of the Interparty Political Agreement (IPA),
and thus that no provision was made for the contingency of Mugabe's
death. It is then arguable that Article 20.1.10 of Schedule 8 to
the Constitution was not intended to apply to the presidency.
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