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In event of incapacitation or death of the President - Bill Watch 27/2011
Veritas
July 10, 2011

We have had many enquiries in the last few days about the legal and constitutional position when an incumbent President becomes ill, resigns or dies. The enquiries have no doubt been prompted by rumours and press stories about this sort of situation arising. When the Speaker was being re-elected in March there were also press rumours about how important it was to the two contesting parties to have their candidate elected as Speaker, as the Speaker would temporarily take over the role of President in such an eventuality. Veritas tried to correct that mis-statement of the law then and will once more state the correct legal and constitutional position: the Speaker of the House of Assembly does not take over as Acting President. [It was only during the 1980s that the Constitution provided for a presiding officer of Parliament to act as President – initially, the President of the Senate and, after the abolition of the Senate, the Speaker. The present provision for a Vice-President to act as President has been in place since 1990.]

1. In the Event of Prolonged Illness or Absence of a President

A Vice-President would act as President

Section 31(1) of the Constitution lays down that whenever the President is unable to perform the functions of his office by reason of illness or absence from Zimbabwe, or if the President dies, then his functions will be carried out by whichever one of the two Vice-Presidents, the President has appointed to do so. In the event of the President’s sudden illness or urgent need to travel, without a Vice-President having been appointed to act, then the Vice-President who last acted as President will take over the Presidential functions. For instance, Vice-President John Nkomo last acted as President during President Mugabe’s most recent absence from the country, so, should President Mugabe suddenly, today, become too ill to perform his functions as President, and has not had time to designate which of the Vice-Presidents should be acting President, then Vice-President Nkomo would become acting President. [Of course the President could have made provision for emergencies by leaving instructions on file about which Vice-President should take over as Acting President in such circumstances, but if he has done so it has not been made public and any instructions on so important a matter would have to be very clear to avoid disputes and legal challenges. Such a document should be in the hands of the Chief Secretary to the President and Cabinet and the Prime Minister.]

The Powers of an Acting President

An Acting President cannot on his own exercise all the powers of a substantive President. There are some major Presidential powers that an Acting President may exercise only in accordance with a resolution passed by a majority of the whole membership of the Cabinet – declaring war, entering into international agreements, dissolving or proroguing Parliament, assigning or reassigning Ministerial functions, dismissing Ministers, [Constitution, section 31(2)].

How long can a Vice-President act as President?

There is no provision in the Constitution limiting the time that a Vice President can act as President while the President is absent or on “sick leave”. But the Constitution gives Parliament the power to deal with a long-term situation. Section 29(3) of the Constitution empowers Parliament to remove a President from office if he is “incapable of performing the functions of his office by reason of physical or mental incapacity”. The procedure is elaborate, as befits so important a question, and involves the following steps:

  • a request to the Speaker, from at least one-third of the members of the House of Assembly, to appoint a committee to consider the problem and to prepare a report
  • the appointment by the Speaker, in consultation with the President of the Senate, of a joint committee of the Senate and the House of Assembly
  • a report by the joint committee recommending the removal of the President
  • a resolution for the President’s removal from office, passed at a joint sitting of Senators and members of the House of Assembly by the affirmative votes of at least two-thirds of their total number

2. In the Event of the Resignation or Death of a President

A Vice President Acts as President

If a President is removed from office or resigns or dies, the office falls vacant. The immediate consequence of a vacancy is that one of the Vice Presidents will act as President, as in the case of illness or absence [see above], with the difference that she/he can only act as President for up to 90 days.

The Vacant Office of the President Must be Filled within 90 Days

Currently, if the event happens during the lifetime of the GPA, the process of filling the office of the President mid-term would be governed by two different provisions of the Constitution:

1. The provision introduced by the GPA

Article 20.1.10 of the GPA, which Constitution Amendment No. 19 incorporated into the Constitution as part of Schedule 8 and which applies as long as the GPA remains in operation, states that a vacancy in the office of President must be filled by “a nominee of the party which held that position [i.e. the Presidency] prior to the vacancy arising”, i.e., in this case, by a nominee of ZANU-PF – but this provision:

  • does not set a time-frame
  • does not say to whom the nominations are to be given
  • does not give a procedure to be followed after nominations are made.

As there are obviously gaps in this GPA constitutional provision, it is necessary to look at the pre-GPA provisions of the Constitution to find out the details of what procedure should be followed.

2. Pre-GPA provisions

Section 28(3)(b) and (4) of the Constitution state that in the event of a mid presidential term vacancy, a new President must be elected within 90 days of the vacancy occurring, by members of the Senate and the House of Assembly sitting jointly as an electoral college in accordance with the procedure laid down in section 112A and the Fifth Schedule of the Electoral Act. Under the provisions of the Electoral Act the Clerk of Parliament calls for nominations to be lodged with him on or before a specified nomination day and if, on nomination day, two or more candidates have been nominated, the Chief Justice is required to summon the Senators and members of the House of Assembly to a joint sitting to elect one of the candidates as President. If only one candidate is nominated the Clerk immediately declares him or her elected as President unopposed. Note: the new Electoral Amendment Bill does not propose changes to these provisions

How a Mid-Term Presidential Vacancy Would be Filled

Amalgamating the constitutional provisions introduced after the GPA and the pre-GPA constitutional provisions would, after the death or resignation of a President mid-term, lead to the following steps:

  • the Clerk of Parliament calls for nominations, specifying the last date for lodging nomination papers with him
  • only nominees of ZANU-PF are eligible as candidates
  • if the Clerk of Parliament receives only one nomination, he would immediately declare that person to be duly elected as President unopposed
  • if more than one ZANU-PF candidate is nominated, the Chief Justice would summon Senators and members of the House of Assembly to meet in a joint sitting as an electoral college to elect one of the candidates as President
  • the Chief Justice would preside over the proceedings of the electoral college, which would be in the chamber of the House of Assembly or some other suitable place decided by the Clerk of Parliament
  • voting would not be by secret ballot – instead the Chief Justice would read out the name of the first candidate and call for members of the electoral college supporting that candidate to assemble in a area indicated by him. This procedure would be repeated for each candidate until all members of the electoral college except those abstaining are divided into voting blocs.
  • counting of votes for each voting bloc would then be done by a member of the bloc appointed by the Chief Justice as its “teller”, and the names of all persons in the bloc would be recorded
  • the winner would be the candidate receiving the majority [50% plus 1] of the votes of members of the electoral college and she/he is declared elected as President. If none of the candidates receives a majority of the votes on a first ballot, the candidate receiving the lowest number of votes is eliminated and the voting process continues for the remaining candidates until one of them wins a majority.
  • the new President would be sworn in by the Chief Justice either immediately or within 48 hours of being declared elected

[Comment: If two or more candidates were to be accepted as duly nominated then the votes of the MDC-T and MDC members of the electoral college might be crucial in deciding which nominee of ZANU-PF would become President.]

The Functions and Term of Office of the New “Mid-term” President

The new President elected as above would assume all Presidential functions without exception. He/she would serve for the unexpired portion of the previous incumbent’s term – i.e., until the swearing-in of a new President after the election following the next dissolution of Parliament.

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied

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