Constitution Watch 8-2017:Can Parliament Remove the President?

CONSTITUTION WATCH 8/2017

[19th November 2017]

Constitutional Options: Can Parliament Remove the President?

The ZANU-PF Central Committee today resolved that if President Mugabe does not agree to retire as President it will instruct the party whip to start impeachment proceedings.  There has also been mention of a vote of no confidence or of the Party not just removing him as President of the Party but also recalling him as President of the Country.

Are these feasible options?  In this bulletin we shall look at the pros and cons of each of them.

Preliminary Point:  Can the President Suspend Parliament?

Before considering Parliament’s power to remove the President we should first ask whether the President can pre-empt any attempt to impeach him by suspending Parliament –there has been an unconfirmed report that the President sent a notice to the Speaker directing that Parliament should not sit until further notice.

If the President did send such a notice it was invalid. 

Under section 145 of the Constitution, the date of Parliament’s first sitting after a general election is fixed by the President but after that, under section 146, each House of Parliament determines the time and duration of its sittings.  Any attempt by the President to prevent Parliament from sitting would be contrary to the clear terms of section 146 and, more generally, would violate the principle of separation of powers which is one of the principles of good governance that is a foundation of the Constitution.

If the President did try to stop Parliament sitting, that would in itself be a ground for impeaching him — which brings us to the main topic of this Constitution Watch, namely votes of no confidence and impeachment.

Vote of No Confidence

Although both Houses of Parliament sitting together could pass a vote of no confidence in the Government in terms of section 109 of the Constitution, the vote would not necessarily result in the President leaving office.  The President would have two options under section 109(4):

·        To remove all Ministers and Deputy Ministers from office and appoint new ones in their place.

·        To dissolve Parliament and call a general election within 90 days.

If the President took the first option he would stay in office with a new set of Ministers;  if he took the second there would have to be a general election within 90 days.

Recall of the President

Several provincial structures of the President’s party, ZANU-PF, have resolved that the President should not only be expelled from the party but also recalled as President.

There is no provision in the country’s Constitution for a President to be recalled by his or her party nor for voters to vote in a referendum, or sign a petition, calling for the President to step down.

The only way for him to be removed from office constitutionally, outside a general election, is for Parliament to impeach him.

Impeachment

1.  Impeachment is a Political Process

Impeachment means charging the holder of an office – in this case the President – with misconduct and removing him from office if he is found guilty.

The first thing to remember is that it is essentially a political process rather than a legal one.  The decision to impeach a head of State and to remove him or her from office, if found guilty, is made on political rather than legal grounds.  The Constitution does however lay down a procedure for impeachment.

2.  Procedure for Impeachment in the Constitution

Under section 97 of the Constitution impeachment is a three-stage process:

1.   First, the Senate and the National Assembly must meet in a joint sitting and resolve, by a simple majority of their total membership, that the President should be removed from office on any one or more of four grounds:

a.   serious misconduct

b.   failure to obey, uphold or defend the Constitution

c.   wilful violation of the Constitution

d.   inability to perform his duties because of physical or mental incapacity.

[Note:  An arguable case could be made for charging President Mugabe with all four grounds]

2.   Once a resolution has been passed, Parliament’s Committee on Standing Rules and Orders must appoint a nine-member committee of Senators and members of the National Assembly to investigate the removal of the President.  Although section 97 of the Constitution does not say so, the committee would have to give the President a full opportunity to respond to the allegations against him – he has a right to a fair hearing under section 69 of the Constitution.

3.   If the committee recommends that the President should be removed from office, the Senate and National Assembly must meet, again in joint session, to deliberate the recommendation, and if in that joint session they resolve by a two-thirds majority of their total membership to adopt the recommendation then the President immediately ceases to hold office.

Impeachment is an elaborate process and would take time to complete.  How long is difficult to say, because Parliament’s Standing Orders do not specify what notice must be given of impeachment motions, nor how joint sittings of the two Houses are convened – in fact they do not deal with impeachment at all.  In the absence of a laid-down procedure, presumably the Committee on Standing Rules and Orders, the Speaker and the staff of Parliament will make it up as they go along.  Nonetheless the process would need at least several days to complete bearing in mind that:

·        An impeachment motion, like all motions, requires at least a day’s notice to be given before it is debated [perhaps Parliament would waive this requirement].

·        Detailed grounds of impeachment would have to be prepared.

·        A joint sitting would have to be arranged

·        An investigation committee would have to be appointed.

·        The committee would have to investigate the grounds of impeachment and give the President an opportunity to state his case [and the President would have no incentive to be brief] and to prepare a report to Parliament.

·        Another the joint session would have to be convened to consider and vote on the committee’s report.

Result of Impeachment

If President Mugabe leaves office through impeachment, a Vice-President takes over as Acting President [paragraph 14(4) of the Sixth Schedule to the Constitution].  All the Ministers who were appointed by him will stay in office, and so will the one remaining Vice-President, Mr Mphoko.  The fact that he may be outside the country, or in detention, or stripped of his party position and membership does not alter his status as Vice-President.  If Vice-President Mphoko were to resign then there would be no Vice-President, and only a President can appoint another Vice-President.

If there were no Vice-President to act as President, the remaining Cabinet Ministers would have to appoint one of themselves as Acting President in terms of section 100(1)(c) of the Constitution.  Such an Acting President could appoint a Vice-President, but only with the approval of a majority of the Cabinet. 

A much simpler option would be if Mr Mugabe were to retire and appoint a new Vice-President before doing so.

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