CLAIM: By law, this man was supposed to have legally taken over after Mugabe’s “resignation,” as he was the sole VP, as Mnangagwa had long been fired by RG.
SOURCE: Twitter
VERDICT: False
A user on Twitter commenting on former Vice President Phelekezela Mphoko’s presence at a ZANU PF rally claimed that, ‘Former ZanuPF and State VP, Phelekezela Mpoko, makes his first public appearance after the 2017 coup that deposed RG Mugabe. By law, this man was supposed to have legally taken over after Mugabe’s “resignation,” as he was the sole VP, as Mnangagwa had long been fired by RG’. The user @laque_davis has 27,600 followers and his tweet had 36,400 views at the time of the fact check.
This claim has been made before here and here.
Credit: Pindula
The Constitution
The position that a sitting President on resignation would be succeeded by one of the Vice Presidents was contained in the Lancaster constitution and not the 2013 one. The 2013 Constitution in Sections 92 and 101 laid out a process where the vice president would be elected and then take over in the event a sitting President left office. However, these clauses were not in effect when President Robert Mugabe resigned in 2017.
This was because Sections 92 and 101 were part of those that were only going to come into effect in 2023.
In 2017, the law governing succession was in an oft ignored section in the Sixth Schedule.
The sixth schedule sections were to be in use for a 10-year period from the adoption of the Constitution in 2013.
Section 14 of the Sixth Schedule, relieved presidential candidates from having to nominate running mates in the first election and any other election within ten years after that election. Instead, the elected President would be allowed to appoint up to two Vice Presidents just like under the previous constitution.
The effect of this was that the running mates issue became irrelevant for purposes of the first election. Neither Mugabe nor Tsvangirai or any other candidate for that matter, were forced by the new constitution to nominate their successors. This is why in the July 31 elections, the issue of running mates did not feature, even though it was there in the new constitution.
Sixth Schedule
14. Special provision for election and tenure of first President and appointment of Vice-Presidents
1. Notwithstanding section 92, in the first election and any presidential election within ten years after the first election, candidates for election as President do not nominate persons in terms of that section to stand for election as Vice- Presidents.
2. Without delay the person elected as President in any election referred to in subparagraph (1) must appoint not more than two Vice-Presidents, who hold office at his or her pleasure.
3. Where–
a. one Vice-President is appointed in terms of subparagraph (2), that person is the first Vice-President for the purposes of this Constitution;
b. two Vice-Presidents are appointed in terms of subparagraph (2), the President may from time to time nominate one of them to act as President whenever he or she is absent from Zimbabwe or is unable to exercise his or her official functions through illness or any other cause.
4. Notwithstanding section 101 but subject to subparagraphs (5) and (6), if the person elected President in any election referred to in subparagraph (1) dies, resigns or is removed from office–
a. the Vice-President or, where there are two Vice-Presidents, the Vice- President who was last nominated to act in terms of subparagraph (3)(b), acts as President until a new President assumes office in terms of subparagraph (5); and
b. the vacancy in the office of President must be filled by a nominee of the political party which the President represented when he or she stood for election.
5. A political party which is entitled to nominate a person in terms of subparagraph (4)(b) must notify the Speaker of the nominee’s name within ninety days after the vacancy occurred in the office of President, and thereupon the nominee assumes office as President after taking the oath of President in terms of section 94, which oath the nominee must take within forty-eight hours after the Speaker was notified of his or her name.
6. In the event of the death, resignation or removal from office of a person who is elected president in an election referred to in subparagraph (1) and who did not represent a political party when he or she stood for election, the Vice-President or, if there are two Vice-Presidents, the Vice-President who was last nominated to act in terms of subparagraph (3)(b), assumes office as President.
When President Mugabe resigned, it was then the duty of his party to choose his successor. His party had up to 90 days to do so. Once that was done, the nominee was to be sworn in within forty-eight hours.
President Mugabe resigned on the 21st of November and on the 22nd the speaker announced that ZANU PF had chosen President Mnangagwa as their presidential nominee and would be sworn in on Friday, the 24th.
This effectively meant that there would be no need for Vice President Mphoko to be Acting President since ZANU PF did not take up 90 days to decide on a nominee, submitting a name to the Speaker as soon as the former President resigned.
The section that never saw the light of day
Sections 92 and 101 (running mates clause) were to come into effect for this year’s election. But Constitutional Amendment number 2 happened.
The amendment repealed these sections and replaced them with the succession clause from the Sixth Schedule. This means that what was meant to be a temporary arrangement has since become permanent. Or, at least, permanent until the next amendment.
Back to where it all began – Amendment No 2
On 7 May 2021, Amendment number 2 was gazetted and duly came into law. Section 92 was repealed and Section 101 was repealed and replaced with a copy of Section 14 of the Sixth Schedule.
This means that what happened when President Mugabe resigned, is exactly what would happen if the incumbent today resigned, was incapacitated, died or was removed from office. ZANU PF would have to choose whoever the party wants and place him (or her) in the highest office of the country.
Conclusion
The claim that, ‘By law, this man (Phelekezela Mphoko) was supposed to have legally taken over after Mugabe’s “resignation,” as he was the sole VP, as Mnangagwa had long been fired by RG’, has been rated as false. The person who takes over to finish the term would be a nominee from the party. This person might or might not be in the vice presidency or cabinet or anything. The Zimbabwean constitution does not state where the party should pick their nominee from.
