WHETHER
THE FORMER PRESIDENT'S RESIGNATION WAS DONE UNDER DURESS
The
Constitution provides for situations in which a presidency may be
brought to an end. Ordinarily, a presidency must last for a period of
five years from the time an elected President is sworn in and assumes
office to the time he or she is re-elected and ...
WHETHER
THE FORMER PRESIDENT'S RESIGNATION WAS DONE UNDER DURESS
The
Constitution provides for situations in which a presidency may be
brought to an end. Ordinarily, a presidency must last for a period of
five years from the time an elected President is sworn in and assumes
office to the time he or she is re-elected and sworn in or a new
President is elected and sworn in. Under the Constitution, a
presidency can, however, be brought to an end before the expiry of
the period of five years by death, resignation or removal from office
of the President through the impeachment process.
It
is common cause that the former President resigned from the office of
President at a time when impeachment proceedings for his removal from
office were underway.
The
question raised by the application is whether the resignation was
coerced out of the former President against his will.
Section
96(1) of the Constitution provides for a situation where a presidency
may be brought to an end by resignation. The Constitution envisages a
freely and voluntarily tendered resignation for the termination of
the presidency to be valid. In other words, the resignation must be a
free expression of the will of the President to bring his or her
presidency to an end.
Section
96(1) of the Constitution provides as follows:
“96
Resignation of President or Vice-President
(1)
The
President may resign his or her office by written notice to the
Speaker,
who must give public notice of the resignation as soon as it is
possible to do so, and, in any event, within twenty-four hours.”…,.
In
compliance with the Constitution, the former President gave written
notice of his resignation from office to the Speaker of the National
Assembly - who is also the Head of Parliament. The written notice of
resignation reads:
“21
November, 2017
The
Honourable Jacob Mudenda,
NOTICE
OF RESIGNATION AS PRESIDENT OF THE REPUBLIC OF ZIMBABWE IN TERMS OF
THE PROVISIONS OF SECTION 96(1) OF THE CONSTITUTION OF ZIMBABWE
AMENDMENT (NO.20) 2013
Following
my verbal communication with the Speaker of the National Assembly,
Advocate Jacob Mudenda, at 1353 HRS, 21st
November
2017, intimating my intention to resign as the President of the
Republic of Zimbabwe,
I,
Robert Gabriel Mugabe, in terms of Section 96(1) of the Constitution
of Zimbabwe, hereby formally tender my resignation as the President
of the Republic of Zimbabwe with immediate effect.
My
decision to resign is voluntary on my part
and arises from my concern for the welfare of the People of Zimbabwe
and my desire to ensure a smooth, peaceful and non-violent transfer
of power that underpins national security, peace and sustainability.
Kindly
give public notice of my resignation as soon as possible as required
by section 96(1) of the Constitution of Zimbabwe.
(signed)
ROBERT
GABRIEL MUGABE
President
of the Republic of Zimbabwe
The
Honourable Jacob Mudenda
Speaker
of the National Assembly
Parliament
of Zimbabwe”…,.
The
Speaker gave public notice of the resignation through General Notice
652 of 2017, within twenty-four hours of receiving the written
notice, as required by section 96(1) of the Constitution. The General
Notice was published in a Government
Gazette Extraordinary
on 22 November 2017. It reads as follows:
“General
Notice 652 of 2017
CONSTITUTION
OF ZIMBABWE
Notice
of Resignation as President of the Republic of Zimbabwe in terms of
the provisions of section 96(1) of the Constitution of Zimbabwe
Amendment (No.20) 2013
IT
is hereby notified that I, Advocate Jacob Francis Mudenda, Speaker of
the National Assembly, on Tuesday the 21st
of November 2017, received a written notification from His Excellency
the President, Robert Gabriel Mugabe, in terms of section 96(1) of
the Constitution, that he has resigned as President of the Republic
of Zimbabwe with immediate effect.
ADVOCATE
JACOB FRANCIS MUDENDA
Speaker
of the National Assembly
22-11-2017”
The
former President's written notice of resignation speaks for itself.
It
sets the context in which it was written. The former President
candidly reveals the fact that he had communication with the Speaker
at 1353 hours. In the communication, the former President expressed
to the Speaker his desire to resign from the office of President. The
Speaker must have advised the former President that for the
resignation to have the legal effect of bringing his presidency to an
end, it had to be communicated to him by means of a written notice.
That is a specific requirement of the form a constitutionally valid
resignation from office by a President has to take.
A
written notice of resignation addressed to the Speaker and signed by
the President, on the face of it, meets the first requirement of
constitutional validity.
The
written notice, which was signed by the former President, in which he
communicated his resignation from office, was received by the Speaker
later that day at 1750 hours. The sequence of events shows
willingness on the part of the former President to ensure that the
end of his presidency was
in
conformity with the Constitution. The contents of the written notice
show that the former President was aware of the fact that his
resignation from office had to conform with the procedural and
substantive requirements of the provisions of section 96(1) of the
Constitution to have the desired legal effect. Specific reference is
made in the written notice to what is the
only
provision of the Constitution in terms of which the validity of a
resignation by a President from office must be established.
Resignation
from office is an expression of a peculiarly personal decision.
Absent credible evidence to the contrary, resignation from office is
evidence of the exercise of free will. A written notice of
resignation addressed to the Speaker and signed by the President
raises the presumption that it is a free and voluntary resignation.
One
does not ordinarily append one's signature to a document the
contents of which do not represent one's interests. The signature
is in itself evidence, in the absence of anything of stronger
probative value to the contrary, of the fact that the contents of the
document express the true intention of the signatory. In the
circumstances, the author of the written notice of resignation would
carry the evidential burden of proving that he or she signed the
written notice under duress.
What
the former President said in the written notice of resignation is the
best evidence available of the state of his mind at the time. He said
he was free to express his will to resign. Not only does the former
President declare, in the written notice, that he made the decision
to bring his presidency to an end voluntarily, he gives reasons for
doing so in clear and unambiguous language. He said he was motivated
by the desire “to ensure a smooth, peaceful and non-violent
transfer of power that underpins national security, peace and
sustainability.” There is no doubt that the former President
ensured that his resignation from office was in strict compliance
with the letter and spirit of the provisions of section 96(1) of the
Constitution.
The
applicants seek to impugn the constitutionality of the former
President's resignation by alleging, without any evidence, that he
resigned under duress. However, the fact that the former President
freely and voluntarily chose to act constitutionally in bringing his
presidency to an end, thereby ensuring a smooth and peaceful transfer
of power, attests to an application of the mind to the consequences
of his action.
In
the absence of any allegation and evidence by the signatory of having
signed the document under duress, a court would not even find it
necessary to enquire into the credibility or otherwise of allegations
of the document having been signed under duress being made by a third
party who was not present at the time the document was signed.
The
written notice of resignation was received by the Speaker at 1750
hours. The debate of the motion for the removal of the President was
underway. The timing of the service of the written notice is proof of
a deliberate decision by the former President to end his presidency
by resignation rather
than
suffer the disgrace of removal from office by impeachment.
The
proceedings before the joint sitting of the Senate and the National
Assembly would not have influenced the former President to resign if
he considered them to be unconstitutional or unlikely to lead to his
removal from office. At the time the impeachment process began, the
military action had obviously not removed the former President from
office. What is clear from the written notice of resignation is that
the former President was free to choose not to resign from office at
the time he did. He could have decided to remain in office and await
the humiliation of being removed from office by the impeachment
process. The state of freedom to choose how the presidency was to end
is a right the former President enjoyed under the Constitution.
The
relief the applicants intended to seek from the Constitutional Court,
in the main application, shows lack of seriousness in the raising of
the allegation of unconstitutionality of the former President's
resignation from office. Whilst contending that the resignation had
no legal effect because it was done under duress, the applicants did
not seek that it be set aside nor that the status
quo ante
be restored.
They
did not want the former President back in office.
The
applicants wanted the Constitutional Court to order that a
Transitional Authority comprising all political players, presumably
including themselves, be appointed to exercise the powers of
Government for a minimum period of twelve months.
They
cannot want to have their cake
whilst
eating it at the same time. If, upon review, the resignation of the
former President was found to have been inconsistent with the
requirements of section 96(1) of the Constitution, it would have had
to be declared unconstitutional. The legal effect of the declaration
of
constitutional
invalidity would be that the resignation would be taken as having not
occurred. The former President would have had to remain in office. No
Transitional Authority could be formed on the basis of a
resignation
in breach of the provisions of section 96(1) of the Constitution. The
Constitution has specific provisions on how a vacancy in the office
of President created by resignation must be filled.
WHETHER
THE IMPEACHMENT PROCEEDINGS WERE AT THE BEHEST OF THE MILITARY
Linked
to the former President's resignation are the impeachment
proceedings that were convened against him.
It
is common cause that the fourth respondent notified the former
President of the impeachment proceedings. The fourth respondent
produced a copy of the Hansard,
which is
the
official record of the proceedings that took place on 21 November
2017. It is proof that the impeachment proceedings were conducted in
accordance with constitutional requirements.
Section
97 of the Constitution provides for the procedure to be followed when
the Senate and the National Assembly resolve to impeach a President.
It reads:
“97
Removal of President or Vice-President from office
(1)
The Senate and the National Assembly, by a joint resolution passed by
at least one-half of their total membership, may resolve that the
question whether or not the President or a Vice-President should be
removed from office for -
(a)
Serious misconduct;
(b)
Failure to obey, uphold or defend this Constitution;
(c)
Wilful violation of this Constitution; or
(d)
Inability to perform the functions of the office because of physical
or mental incapacity;
should
be investigated in terms of this section.
(2)
Upon the passing of a resolution in terms of subsection (1), the
Committee on Standing Rules and Orders must appoint a joint committee
of the Senate and the National Assembly consisting of nine members,
reflecting the political composition of Parliament, to investigate
the removal from office of the President or Vice-President as the
case may be.
(3)
If -
(a)
The joint committee appointed in terms of subsection (2) recommends
the removal from office of the President or Vice-President; and
(b)
The Senate and the National Assembly, by a joint resolution passed by
at least two-thirds of their total membership, resolve that the
President or Vice-President, as the case may be, should be removed
from office;
the
President or Vice-President thereupon ceases to hold office.”
Under
the Constitution, only the two Houses of Parliament, when constituted
into a joint sitting, are vested with the power to impeach a
President for the purpose of removing him or her from office.
Whilst
Parliament has the power of impeachment, it is not under a duty to
impeach a President. It has a wide leeway to decide whether and when
to institute the impeachment process. Impeachment is a dangerous
political process to be embarked on as a
last
resort and in clear cases. A failed impeachment process may have
serious divisive effects. A successful removal of a President from
office by impeachment visits the former President, and the nation,
with disgrace.
Impeachment
is, however, a democratic weapon against serious misconduct,
intentional failure to obey, uphold or defend the Constitution,
wilful violation of the Constitution, and inability to perform the
functions of the office of President due to physical or mental
incapacity. In clear cases, the personal and national disgrace
resulting from the removal of a President from office through the
impeachment process are a price worth paying.
The
Hansard
indicates
that on Tuesday, 21 November 2017, at 1630hrs, there was a joint
sitting of the Senate and the National Assembly at the Harare
International Conference Centre. A member from the ruling party moved
a motion for the resolution of the question whether or not the
removal of the President from office for the reasons specified in
section 97(1) of the Constitution should be investigated. The mover
of the motion set out details of the acts and omissions the former
President was alleged to be guilty of. The motion was supported by
two members of the ruling party. Two members of the opposition rose
to support the motion. A proportional representation member also
supported the motion. The debate was on-going when, at 1750hrs, the
impeachment process was interrupted by service on the Speaker of the
written notice of resignation from the former President.
Members
of Parliament had to decide, at this stage of the process, whether
the acts and omissions with which the former President was being
charged in the motion would, if proved at the investigation stage,
constitute the grounds for removal of a President from office listed
under section 97(1) of the Constitution.
The
applicants did not suggest that what happened at the International
Conference Centre were not
impeachment
proceedings. They accepted that a joint sitting of the Senate and the
National Assembly was convened and a motion moved charging the former
President with acts and omissions which, if proved, would constitute
the grounds for removal from office. They did not seek to impugn the
accuracy and correctness of the record of proceedings in the nature
of the debates by Members across the political divide who supported
the motion for a resolution that the question of the removal of the
President from office be investigated.
Failure
by the applicants to allege any inconsistency between the conduct of
the proceedings and the requirements of section 97(1) of the
Constitution shows that they had no basis on which the
constitutionality of the impeachment proceedings could be impugned.
The joint sitting of the Senate and the National Assembly does not
only have the power to decide when impeachment proceedings commence,
it controls the advancement of the process towards the realisation of
its objective. It does so through compliance with the procedural and
substantive requirements of section 97 of the Constitution.
Had
the former President not stopped the impeachment process from going
through each of the four stages prescribed by section 97 of the
Constitution, by tendering his resignation from office, he would have
been given an opportunity to be heard on the charges levelled against
him at the investigation stage. The fact that the former President
tendered his resignation at a time when the impeachment process was
underway suggests that he carefully considered the chances of
surviving the process and concluded that his removal from office was
the inevitable outcome.
WAS
THE ASSUMPTION BY THE FIRST RESPONDENT OF THE OFFICE OF PRESIDENT
UNCONSTITUTIONAL?
The
allegation that the assumption by the first respondent of the office
of President was unconstitutional could only be made on the
assumption that the resignation from office by the former President
was invalid.
That
assumption was wrong.
All
the evidence shows that the former President's resignation was in
conformity with the provisions of the Constitution.
The
legal effect of the resignation was the creation of a vacancy in the
office of President. Paragraph 14(4)(b) of the Sixth Schedule to the
Constitution provides that a vacancy in the office of President,
created by the resignation of a President who has been elected in a
general election, must be filled by a nominee of the political party
which the President represented when he or she stood for election.
Paragraph
14(5) of the Sixth Schedule provides that the political party which
is entitled to nominate a person to fill the vacancy in the office of
President must notify the Speaker of the nominee's name within
ninety days after the vacancy occurred in the office of President.
The Constitution goes on to provide that 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.
It
is common cause that the assumption by the first respondent of the
office of President was in accordance with the procedural and
substantive requirements of paragraphs 14(4)(b) and 14(5) of the
Sixth Schedule to the Constitution. A vacancy in the office of
President occurred as a result of the resignation by the former
incumbent.
ZANU
(PF), which is the political party the former President represented
when he stood for election, nominated the first respondent as the
person to assume the office of President. The Speaker was notified of
the first respondent's name as the nominee to fill the vacancy in
the office of President within the prescribed period of ninety days
after the vacancy occurred in the office of President.
The
first respondent took the oath of President within the requisite
forty-eight hours after the Speaker was notified of his name. As a
result of strict compliance with all the procedural and substantive
requirements of a constitutionally valid assumption of the office of
President left vacant by reason of resignation, in terms of section
96(1) of the Constitution, the first respondent assumed office as
President.
The
question of the constitutionality of the assumption by the first
respondent of the office of President cannot arise from these
self-evident facts….,.
DISPOSITION
In
the result it is ordered that -
1.
The application for direct access to the Court be and is hereby
dismissed.
