4 October 2017

Zimbabwe's Succession Rubik's Cube

Photo: The Citizen
Zimbabwe President Robert Mugabe.
analysis

Whenever President Robert Mugabe's busy travel schedule out of Zimbabwe permits, he takes the opportunity to address scheduled 'Presidential Youth Interface Rallies' set for each of the country's 10 provinces. Very few issues specific to the youth are raised at the rallies.

At the seventh rally on 9 September, Mugabe talked at length about factionalism - remarkable given that not long ago the Zimbabwe African National Union - Patriotic Front (ZANU-PF) denied the existence of factionalism in its ranks. He also accused key figures in both camps - 'Generation 40', close to First Lady Grace Mugabe, and 'Team Lacoste', close to Vice-President Emmerson Mnangagwa - of having harboured ambitions to oust him in the past.

The 93-year-old president said he would not impose his infamously intemperate wife as successor; not, it seems, because her candidacy is unthinkable - but because 'as a lawyer' he would precisely follow the dictates of the party's constitution. Mugabe emphasised that his successor must be democratically elected by the party's congress, as set out in the party's governing charter.

The choice of deputy chief justice could show how ZANU-PF's fraught succession dynamics may play out

However, there are several indications that Mugabe has never read the document and has little interest in it. During an interview on state television marking the occasion of his 91st birthday, Mugabe was asked about an amendment to the party constitution that had removed a requirement that one of the two party vice-presidents be a woman.

His insouciant response was, 'Ah, have we removed it? I do not think we have removed it. We just ignored it for now... '

Mugabe's statement that his successor will be chosen at congress is the official response to the leadership crisis engulfing the party. The constitution is 'the party's Bible' and it will be followed to the letter, we are told. Unfortunately, the party's constitution in this regard is as clear as mud. Most Zimbabweans and party members are unaware that the ZANU-PF constitution has different provisions pertaining to the replacement of Mugabe as state president on the one hand, and as party president on the other.

In the former instance, the constitution provides that if the party, in line with the country's constitution, is required to nominate someone to serve out Mugabe's remaining term of office as state president, the party 'may' convene an extraordinary congress for this purpose.

In the latter instance, the party constitution has no provisions that directly cater for the contingency of the party president's sudden demise. And it has two contradictory provisions stipulating how the party president is to be appointed in the normal course of events. Section 24(2) states that one of the functions of the party's congress is to 'elect the president'; section 35(1)(a) states that the party president is 'elected nationally by party members'.

The official response to ZANU-PF's leadership crisis is that Mugabe's successor will be chosen at congress

The possibility of confusion about the procedure to be followed doesn't end there. The constitution requires that all elections for party positions are to be conducted by the ZANU-PF electoral commission. The nine-member commission is to be appointed by the president - a prerogative he is yet to exercise. If Mugabe dies without the commission in place, the party constitution requires that one of the two vice-presidents is to make the appointments. It does not state which one. And one or both may themselves be contenders for the presidency.

These messy provisions are an open invitation for judicial intervention. It is this consideration that may well be one of the factors informing the first amendment to Zimbabwe's still-green 2013 constitution, driven by the Lacoste-controlled Ministry of Justice.

Much fuss was made about the restoration of the president's power to choose the chief justice through the amendment, motivated by the retirement of the now-late chief justice Godfrey Chidyausiku in February this year. In the event, the constitutional requirement to fill the post without undue delay was (sort of) followed. In March, former deputy chief justice Luke Malaba was promoted to chief justice after public interviews and selection by a judicial service commission. This was required by the country's unamended charter and before the constitution was changed.

The consequently vacant post of the deputy chief justice, who should sit in both the Supreme and Constitutional Courts, has not yet been filled. With the constitutional amendment becoming effective from 8 September, this duty now lies with the state president.

ZANU-PF's constitution says elections for positions must be conducted by the party's electoral commission

If the judge president of the High Court (which is the next highest court) is appointed as deputy chief justice by Mugabe, Mugabe may also, in terms of the amendment, select the person who will replace the promoted judge president. The incumbent judge president is George Chiweshe, perceived as firmly Lacoste. If he is promoted to deputy chief justice, he could be replaced by Lacoste ally High Court Judge Charles Hungwe.

The High Court is the starting point for all cases of any magnitude, which may then go on appeal to the Supreme or Constitutional Courts. The judge president has extensive powers over the High Court, including the allocation of cases to specific judges.

A specific judge may thus be selected to resolve ZANU-PF's constitutional succession conundrum when it comes before the court. On appeal, the chief justice may prove to be susceptible to the sudden illness that seems to afflict members of the judiciary when toxic political hot potatoes land on the bench, and his deputy will take on the task.

Away from the politicking and carefully choreographed rallies, the choice of deputy chief justice may well prove to be a good indicator of how the party's fraught succession dynamics may play out. This space is being carefully watched.

Derek Matyszak, Senior Research Consultant, Peace and Security Research Programme, ISS Pretoria

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