ZANU PF SUCCESSION, THE CENTRAL COMMITTEE AND THE THOKO/MPHOKO DYNAMIC

In this post, I review succession and party constitutionalism in ZANU PF in light of the events of November 2017 and subsequent comparisons between Phelekezela Mphoko and Thokozani Khupe.

1.    How is the President of ZANU PF removed from office?

There are two ways in which a sitting ZANU PF president can lose his or her office. The first basis is absence from three consecutive meetings of a party organ without reasonable cause. The second is a motion of no confidence by the relevant organ. The president sits in the Central Committee, Politburo and even the National Consultative Assembly. These could pass motions to remove the president if he or she is absent from three consecutive meetings without just cause or upon a motion of no confidence on the grounds of incompetence/and or dereliction of duty, gross misconduct/disloyalty or treachery. In all other instances, the president serves out his or her term until the next elective congress.

2.    What happens if the President of ZANU PF is removed, dies or resigns?

There is no provision specific to this circumstance. However, the ZANU PF Constitution states that an extra-ordinary congress can be convened whenever it is deemed necessary. It is likely that the death, resignation or removal of the president would fit such purpose.  The only other circumstance triggering such congress is the need to pick a successor for the national presidency. In all other instances, this power is discretionary. The constitution is silent on which Vice President would act towards the extraordinary congress. In November 2017, that Vice President would have been Phelekezela Mphoko as the only sitting Vice President, but the party quickly removed him from that position in a manner which I question below.  

3.    Is this how Mugabe was removed?

Not at all. On 19 November 2017, the ZANU PF Central Committee announced that it had ‘recalled’ Robert Mugabe. He was dismissed together with Phelekezela Mphoko, with Mnangagwa reinstated as a party member and interim president. However there is no right of recall in the ZANU PF Constitution. There is only a power to pass a motion of no confidence on the grounds listed, or pass a resolution based on absence from three consecutive meetings. Even the National Constitution does not have a right to recall the President. It is only members of parliament who can be recalled. The ruling party only retains a right of replacement if the President dies, resigns or is removed from office. The right of recall is generally exercised in countries where parliament elects the president or prime minister. As a directly elected president, the Zimbabwean leader cannot be ‘recalled.’ Thus, the Central Committee Resolutions of 19 November 2017 were patently unconstitutional. The Central Committee ought to have passed a vote of no confidence in Robert Mugabe to constitutionally unseated him from the ZANU PF presidency.

4.    Was the Central Committee correctly constituted?

It was not. Many have correctly highlighted that in terms of section 38 of the ZANU PF Constitution, the Central Committee is presided over by the President and in their absence, the Vice Presidents or National Chairman. In other words, the Central Committee is not separate from what ZANU PF calls the Presidium. It works with the Presidium, without which it is not properly constituted. On 19 November 2017, the Central Committee was chaired by Obert Mpofu as its most senior member. This is not supported by the ZANU PF Constitution. It was only Robert Mugabe or Phelekezela Mphoko who could have presided over such session. However, both were ‘recalled’ in terms of the same meeting. 

Thus, the Central Committee ought to have at least invoked its section 37(8) power to amend the Constitution and allow the most senior member to preside over that session. Such amendment would have remained vulnerable to the charge that it could not be validly made when the committee was not properly constituted. This means the Central Committee was not properly constituted and also proceeded to wield a non-existent power of recall. This puts paid to all the comparisons of Phelekezela Mphoko to Thokozani Khupe. The recall of Mugabe was coterminous with that of Mphoko so the latter could not lead the party since his incumbency had been also been terminated. To the extent that Mugabe's recall was invalid, so was Mphoko's, meaning he could not be lead ZANU PF when it retained a valid president. Thus, there was no constitutionally mandated period of incumbency which he was denied. 

5.    Does this make Mugabe’s resignation invalid?

No. It makes his 'recall' invalid. Robert Mugabe’s resignation as national president, the delivery of his letter to the Speaker of Parliament and subsequent inauguration of Emmerson Mnangagwa were all in tandem with the provisions of the National Constitution. Whilst one may question the motives that led to the resignation, the resignation itself was constitutionally valid. Phelekezela Mphoko became Acting President by operation of law since the Constitution does not require a swearing in ceremony for the Acting President.

More poignantly, the National Constitution does not state how parties select the successor to the presidency. That is provided in the ZANU PF Constitution, section 26(2) of which provides as follows:

An extraordinary session of congress may be convened…

(2) In the event of a vacancy occurring in the office of National President requiring the party to nominate a successor, at the instance of the Secretary for Administration

It is when a vacancy occurs that such congress may be convened to nominate the successor. It is not convened to endorse a nomination but to make it. The successor to the president is nominated within 90 days in terms of the National Constitution. ZANU PF had more than enough time to give six weeks' notice for its extraordinary congress and nominate its preferred candidate. However, following Robert Mugabe’s resignation on 21 November 2017, ZANU PF nominated Emmerson Mnangagwa the very next day and he was sworn in on 24 November 2017. The extraordinary congress was held much later in December 2017, at which it endorsed the Central Committee’s nomination of Emmerson Mnangagwa. This was a remarkable reversal of roles. Even though the ZANU PF Constitution gives powers of nomination to the extraordinary congress, the Central Committee arrogated this power to itself, leaving the extraordinary congress only with the role of endorsing its actions. Derek Matyszak has previously written of the growing influence of the ZANU PF Politburo. However, by the end of 2017, it was the Central Committee which had granted itself a new power to recall the president, a new basis to sit in the absence of the Presidium and had successfully usurped the power to nominate the president’s successor.

6.    What is the remedy?

As with the MDC scenario, we are left with the so what question. Even undoing these events would lead to bigger questions. As Matyszak explains, the pre-2017 era was itself problematic since Mugabe, Mphoko and Mnangagwa were not constitutionally elevated at the 2014 ZANU PF Congress. Rather predictably, the ZANU PF scenario leads to an infinite regress of constitutional transgression. It points to the larger problem of political parties ignoring constitutional provisions for political expediency. This is deleterious to democracy as it fosters lack of respect for due process and the rule of law. It creates a false choice between populism and constitutionalism when political parties could easily achieve both. This is made worse by the reality that party loyalists will support their cause, unfazed by constitutional indiscretion. Yet it is only the party faithful that can enforce their supreme constitutive documents. Zimbabwe needs to move beyond the false binary of populism on the one hand and constitutionalism on the other and embrace popular constitutionalism.  This requires popular leaders to use their mass appeal to demand adherence to, rather than sacrifice of, constitutional commitments. If constitutionalism is the ideal to which the MDC is held as a potential ruling party, it stands to reason that ZANU PF must be held to this standard even more stringently as the actual ruling party for close to half a century.