Impeaching the President in Zimbabwe: Quick Notes

The Preamble affirms that sovereignty rests with the people who are described under the “We the People” phrase. The Zimbabweans went to the streets to express their solid will to have the President resign.

AWRITTEN Constitution is a power map on how principal institutions can be established on the one hand and how the functionaries of a State can be appointed, voted for or removed.

In essence, it allocates powers between the rulers and the people. It is the key to identifying the matters that are constitutional and those that are not when dealing with grey areas on the appointment or removal of State functionaries such as the President. The people of Zimbabwe give executive power to the President by directly appointing him.

Using the solidarity march that was held on 18 November 2017, the cause of his appointment must follow and result in his removal. The people have demonstrated beyond a measure of doubt that they can directly remove him. Such a removal is analogously reserved to the people.

Quintessentially, the central answer on the legitimacy of the President in Zimbabwe is normatively shown in the following constitutional provisions which relate to the appointment and removal of the President.

The Appointment of a President is governed by Section 92 (3) of the Constitution of Zimbabwe, 2013, (Constitution). The section shows that a President is directly elected jointly by the voters throughout Zimbabwe, and the procedure is of course spelt out in the electoral law — including the Electoral Act.

After being directly appointed by the people of Zimbabwe, a President becomes the Head of State, Government and Commander-in-Chief of the Defence Forces as shown in Section 89 of the Constitution. Upon removal, it follows that he leaves the three pillars above. As part of the Defence Forces, the President is also not an ordinary civilian leader, but is a de jure general.

His headship is based on the authority of the people who give him Presidential legitimacy through direct appointment. This article makes an attempt to define the “people” as a constitutionally loaded word. Because a President is directly appointed, the “people” can be defined using the Preamble and the founding tenets of democracy that are listed in section 3 of the Constitution.

The Preamble affirms that sovereignty rests with the people who are described under the “We the People” phrase. The Zimbabweans went to the streets to express their solid will to have the President resign. Using that march, the President’s legitimacy waned rapidly. Because the people felt that he had failed to plumb the benefits of his direct appointment, he has all, but been seen out.

Because impeachment is largely a political process in that members of different political parties must unite in impeaching a President, it is also important to define the “people” using the tenets in section 3 of the Constitution.

Section 3 (2) (d) of the Constitution states that good governance is based on “the respect for the rights of all political parties”. This definition is important and is based on the fact that the Constitution provides the legal framework for the removal of the President. It also shows what happens if the President has been removed.

There is no doubt that Zimbabwean political parties and their support bases participate in the direct appointment of the President as envisaged under Section 92 relating to the election of the President and Vice Presidents. Using the peaceful march that was held on 18 November 2018, different political parties, individually or as part of coalitions, indicated that they want the President to resign.

There were speeches to this fact from members of ZANU-PF, Mr Mwonzora of the Movement for Democratic Change-T and Dr Joice Mujuru of the People’s Rainbow Coalition.

By parity of reasoning, the will of their party supporters has also been affirmed to the extent that the President has to be removed. Under the sovereignty of the people normatively expressed in the Preamble to the Constitution, the people have freely expressed, through their different political parties, their need to show that they no longer want the President whom they directly appointed.

This takes the arguments in this article to the provisions relating to the removal of the President. Constitutionally speaking, there are no extra-legal limits in the Constitution on the part of Parliament’s role in the removal process. Section 97 of the Constitution is clear that the Senate and National Assembly can jointly resolve through a 50 percent of their total membership to remove either a President or Vice President.

The reasons for impeaching a President or his Vice are clearly laid out in section 97 (1) (a)-(d) of the Constitution. They include: serious misconduct; failure to obey, uphold or defend the Constitution; wilful violation of the Constitution and inability to perform the functions of the office because of physical or mental incapacity.

On the part of the President, it has been shown here that the people have expressed their desire to have him leave office for various ways which came up in the peaceful march. On the part of the VP, his whereabouts are largely unknown. As such, he can be removed on the grounds of physical incapacity in terms of section 97 (d) of the Constitution.

The major reason to remove him in this way is to be found in section 99 of the Constitution. A VP assists the President in the discharge of his or her functions and performs any other functions, including the administration of any Ministry, department or Act of Parliament, that the President may assign to them.

The corollary to the above is that the VP must be physically present at all material times to exercise the above-listed functions, failure which he becomes unfit to hold the office of his office. Alternatively, Parliament can decide to impeach the President individually and then declare that VP Mphoko is the President. If VP Mphoko fails to pitch up within forty-eight hours as is envisaged by the Constitution, which is highly likely since he has been recommended for dismissal from the party, they can again decide to impeach him on the ground of physical incapacitation.

This would achieve the same end with the simultaneous process alluded to above. Inasmuch as this would again produce interesting beginning to an era where people are allowed to assert their sovereignty through their elected representatives in Parliament, this process is unpeopled in its nature.

Whichever way is taken, this will also go a long way in solving the constitutional question on who has the biggest mandate from the people; a President who is directly appointed by the People, or Parliament, which is voted for by the people? For long, it had seemed like the President wielded much power under our Presidential system. Effectively, this will also become important in deciding whether we need a Parliamentary system or Presidential system?

On how long the impeachment process can yield a success, this is clearly laid out in section 97 of the Constitution. Both Houses of Parliament are at large to speed up or slow down their investigations into the reasons for impeachment. Analogously, they must avoid authoritarian democracy whereby they disregard the will of the electorate, which voted for a constitutional democracy.

The people have decided to assert their sovereignty and showed on 18 November, 2017, a replica of the Independence Day on 18 April, 1980, that they want the President to be ousted. The former President has also substantiated this position through his speech wherein he acknowledged that constitutional ethos have not been followed in spirit and letter both at party and national levels. Put simply, the people’s concerns have been legitimised by the President. Put differently, he has lost legitimacy as a direct appointee of the people.

His appointing authority — the people — can directly remove him. Section 97 of the Constitution is the legal infrastructure that directs the political actors in Parliament on how to remove a President. The actors in Parliament are voted into office by the people. Using the solidarity march, the Parliamentarians are constitutionally obliged to decide to investigate the reasons for the removal within a very short space of time.

This is because section 97 (1) of the Constitution simply states that the reasons for the removal of the President or VP “should be investigated in terms of this section”.

Most importantly, the section is framed in a way which does not provide timelines for the investigation. What is simply needed is the appointment of a joint committee of the Senate and the National Assembly consisting of nine members to investigate the removal. Such committee must reflect the political composition of Parliament. This seems a given since most political parties have shown their inclination to impeach the President.

In all this, Parliament must act with urgency, bearing in mind that the three pillars of the State: legislature, judiciary and executive, derive their powers from the people. The people have marched in solidarity to demonstrate the urgency of the removal of the President.