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Thinking inside the box
Derek Matyszak, Research and Advocacy Unit
November 14, 2011

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Should I stay or should I go now
should I stay or should I go now
if I go there will be trouble
if I stay it will be double
so come on and let me know
should I stay or should I go
- Mick Jones, The Clash

Zimbabwe's current "Government of National Unity" (GNU) is established by a transient Schedule appended to its national constitution. Buried in this 8th Schedule is a small but immensely significant legal provision, Article 20.1.10, which provides:

In the event of any vacancy arising in respect of posts referred to in clauses 20.1.6 and 20.1.9 above, such vacancy shall be filled by a nominee of the Party which held that position prior to the vacancy arising.

The posts referred to in 20.1.6 are all executive positions, and include the presidency. This legal requirement may inform much of ZANU PF's current political thinking, particularly in regard to the timing of the next election.

SADC has made it clear that it will not countenance an election held under Zimbabwe's current constitution and in the absence of other democratic reforms. Yet the repeated delays in developing a new constitution suggest that the process may not be completed much before 2013. Given President Mugabe's increasingly frequent trips to Singapore for medical treatment, it is extremely doubtful he will be fit to stand as a presidential candidate in 2013, when he will be 89. Mugabe's failing health has led to the consideration of alternatives and highlighted the legal complexities and contradictions in Zimbabwe's constitution around the issue of presidential incapacity and a vacancy at the very top of the executive.

In terms of the current constitution, if the President is unable to perform his duties, one of two-vice presidents temporarily assumes this role for an indefinite period. However, the prolonged incapacity of Mugabe might cause Parliament to initiate procedures for Mugabe's permanent replacement. A motion in the House of Assembly passed by only a third of members is sufficient to establish a committee, comprising members of both the Senate and House of Assembly, which may recommend that the President be removed from office by reason of his physical incapacity. The recommendation is implemented if adopted by the vote of two-thirds of the combined Houses. If the office of the President becomes vacant in this manner, or due to the sudden death or retirement of the President, one of the two Vice-Presidents will assume office in the interregnum period - which of the two depends upon who last acted as president or whom Mugabe has nominated for this purpose. For this reason, close attention is paid to who assumes the role in Mugabe's absence. One of the Vice-Presidents, Joice Mujuru, is regarded as a contender for the presidency. While not assuming plenary presidential powers, she would have the power in the interregnum period to dismiss the heads of the security sectors, all of whom are regarded as key players in the issue of determining the successor to Mugabe.

The interregnum period cannot be longer than 90 days during which time both Houses of Parliament must sit as an electoral college to appoint a successor to see out the remainder of the presidential term. The Clerk of Parliament will determine the date of the election within this period.

Although the provisions of the 8th Schedule override any provisions elsewhere in the Constitution "to the contrary", the question arises as to whether the provision which allows a vacancy in the presidency to be filled by a nominee of ZANU PF overrides the requirement of establishing an electoral college, as outlined above, or operates in conjunction with it. The effect of reading the two provisions conjunctively would be that while an electoral college must be convened, only nominees "of ZANU PF" may stand as candidates.

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