The disaster situation in various parts of the country has led to various questions over the authority that the Acting President has in the absence of President Mugabe, who is presently enjoying his annual leave away with his family in the Far East. Who really is in charge and what powers do they have?
Can they deploy the military to assist civilian authorities in dealing with the flooding? This note deals with these and related questions on the authority of an Acting President – what they can do and what they cannot do, in terms of the Constitution, which is the supreme law of the land.
First, however, I need to clear some confusion that has arisen over the so-called hierarchy of Vice Presidents. The Constitution has two different provisions that deal with the appointment of an Acting President.
The first provision is s. 100(1) which provides that whenever the President is absent from Zimbabwe or is unable to exercise his functions due to illness or some other cause, those functions must be exercised by the first Vice President or in his absence, the second Vice President. Where there is no Vice President, this role is assumed by a Minister who is designated by the President for such a scenario or is nominated by Cabinet.
The second provision is s. 14(3) of the Sixth Schedule of the Constitution, which provides that where there are two Vice Presidents, the President may nominate one of them to be Acting President in his absence or where he is unable to exercise his functions due to illness or for any other reason.
There is, therefore, a conflict between the two provisions, with s. 100(1) suggesting that there is a hierarchy between the Vice Presidents and s. 14(3) suggesting, on the contrary, that the two Vice Presidents are equal. S. 100(1) is based on the application of provisions for the election of Vice Presidents as running mates of the Presidential candidate, under s. 92. Under that system, there is a first and a second running mate, who eventually become the first and second Vice Presidents, in that order, if they are successful in the election.
However, this hierarchical structure does not apply under the present system, because s. 92 and the running mates system does not become operational until 2023. Under the current system, the Vice Presidents are appointed by the President in terms of s. 14(2) of the Sixth Schedule.
The two Vice Presidents are equal at law. One might contend that there is an internal political hierarchy within Zanu PF, which might make one of either VP Mnangagwa or VP Mphoko more senior than the other, but under the national Constitution, they are equals.
The question then, is which applies between s. 100(1) and s. 14(3) of the Sixth Schedule? This conflict is easily resolved by s. 2 of the Sixth Schedule, which provides that where there is such a conflict the Sixth Schedule prevails over all other provisions of the Constitution.
This means s. 14(3) of the Sixth Schedule has superiority over s. 100(1) in regard to the issue of hierarchy of the Vice Presidents and how Acting Presidents are appointed.
However, it would have been better had Parliament simply made it clear that s. 100(1) does not apply for the first ten years, as it did with s. 92. But the Constitution was a rushed job in the end and there were some omissions and this is one of them.
Thankfully, the inconsistency is not unresolvable, as we have seen above. This clears the matter – there is no first and second Vice President under the present system. Now to the question of the powers of an Acting President.
In the present scenario, VP Mnangagwa was left in charge as Acting President in terms of s. 14(3) of the Sixth Schedule.
But what powers does an Acting President have? Does an Acting President assume all the powers of the President? Can the current Acting President, Emmerson Mnangagwa, exercise all the functions that President Mugabe would otherwise exercise if he wasn’t on leave?
Can he deploy the military to disaster areas in the absence of the President?
Answers to these questions are to be found in the Constitution. While the Acting President can exercise the majority of functions of the President, there are some functions which he can only exercise with the majority support of the Cabinet.
Still, as we shall see shortly, this is an improvement from the position under the old Constitution, where the Acting President’s role was more limited.
The powers of the President which an Acting President cannot exercise unless he has a majority resolution of Cabinet are as follows:
Deployment of the Defence Forces; entering into international agreements, treaties or conventions; appointing or sacking the Vice President, Ministers or Deputy Ministers; assigning or reassigning functions to the Vice President, Ministers or Deputy Ministers.
This means if the Acting President wants to exercise any of these powers, he would need to convince Cabinet to secure a majority. In fact, the powers of an Acting President have been expanded because under the old Constitution, if the he wanted to dissolve or prorogue Parliament, he also had to seek majority support of Cabinet.
Now, however, under the new Constitution, an Acting President does not need the support of Cabinet to dissolve Parliament. The existence of this power under the current political climate is not to be underestimated, but that is a separate matter for another time.
Of the stated powers, and of interest in the present circumstances, it is the deployment of armed forces that is the most critical. It is also the most sensitive, given the political ramifications of using that kind of power, affecting as it does, command of the military.
However, it is not unusual for the Government to deploy members of the Defence Forces to assist civilian authorities in responding to disaster situations. In this regard, s. 213(2) provides that the President has the power to deploy the Defence Forces “in support of the Police Service and other civilian authorities in the event of an emergency or disaster”.
The question therefore is whether the Acting President can deploy the Defence Forces in the event of an emergency in the absence of the President? The answer to this is that he can but only with the support of the majority of his Cabinet colleagues.
Critics may argue that s. 213(1) states that only the President, as Commander-in Chief of the Defence Forces has the power to authorise the deployment of the Defence Forces, but it is clear that this provision is qualified as it is “subject to this Constitution”.
As we have seen, the Constitution allows the Acting President to deploy the Defence Forces if he has the majority support of Cabinet. Here, the role of Cabinet is to check and balance the power of the Acting President but that power is not circumscribed.
The problem in Zimbabwe is that notwithstanding the existence of these powers, the Acting President has, in reality, been no more than a place-holder. The Acting President has never been able to preside over Cabinet meetings in the absence of President Mugabe.
When during the GNU, the MDCs tried to assert the power to hold Cabinet meetings in President Mugabe’s absence, this was dismissed. Power has been heavily centralised in the office of the President and any attempt to exercise those functions has probably been interpreted as undermining or usurping the powers of the President.
I recall during the negotiations that this was a hotly debated issue, partly because the MDCs had been frustrated in their efforts to change the culture of not having Cabinet meetings when President Mugabe was out of the country. It was argued that there must be specific authority for the Acting President to preside over Cabinet in such cases.
This is why s. 105(2) specifically provides that, “Cabinet meetings are presided over by the President or, in his absence, by a Vice President or in their absence by a [designated] Minister …” This provision was included with the intention of making it plain that the Acting President does have legal authority to chair Cabinet meetings in the absence of the President.
The implication of all this is that Acting President Emmerson Mnangagwa does have the constitutional authority to call and preside over Cabinet meetings and further, if the majority of Cabinet agrees with him, he also does have the power to deploy Defence Forces to assist in the disaster situation if circumstances warrant such a measure.
They do not have to wait for President Mugabe to exercise these functions. The Constitution allows them to do so.
There are, of course, political considerations that might dissuade and prevent him from exercising these powers. There has always been a fear in Zanu PF, as in other political parties in Zimbabwe, of creating the so-called two or more centres of power.
Former VP Mujuru was haunted out of office on the back of allegations that she was creating her own centre of power, competing with that of President Mugabe. Similar allegations were also made within the MDC-T during the course of the year. A conspicuous feature in both the major political parties last year is that there were constitutional changes which led to more centralisation of power in the office of the President.
The irony is that it is the fear of this accusation that also haunts Acting President Mnangagwa, too and stand in his way of exercising constitutional authority as Acting President. Already, he has been reminded of the danger of creating a separate centre of power.
A couple of high profile supporters have already had their fingers burnt over their allegedly sycophantic adulation of his person. Psychomotor Affairs Minister, Josiah Hungwe referred to him as the “son of God”, and Mashonaland West Provincial Affairs Minister, Faber Chidarikiwe referred to Mnangagwa’s wife as the “acting First Lady”. Both received a severe hammering in the State media and elsewhere for these tactless comments.
Mnangwagwa himself has not been spared. A State media columnist, who plies his trade under the title of Bishop Lazarus, heavily criticised him for convening meetings of businessmen and politicians at his Kwekwe farm.
Other figures, including Information Minister Jonathan Moyo and central committee member, Patrick Zhuwao, have also come out openly to quash speculation that by his appointment as Vice President, Mnangagwa had received backing by President Mugabe as his preferred successor.
All this has been done to dampen the euphoria that attended upon his elevation to the Vice Presidency last month. Much of the criticism has warned of the dangers of creating a competing centre of power.
Unsurprisingly, Acting President Mnangagwa may have been rattled by this criticism. He may have become hesitant to assert himself and make use of the constitutional powers that he has, including the power to convene a meeting of Cabinet and, in this case, to do so in order to consider the deployment of the Defence Forces to assist in the disaster situation.
But this does not mean that he does not have the constitutional authority to do so. The Constitution makes provision for the exercise of these powers by the Acting President. Unless President Mugabe returns to take back the reigns and exercise his functions, the Acting President would be well within his powers to exercise these functions.
Dr Alex Magaisa can be reached on waMagaisa@yahoo.co.uk. You can visit his blog on http://newzimbabweconstitution.wordpress.com/