In the latter instance, the party constitution has no provisions that directly cater for the contingency of the party president’s sudden demise.
And it has two contradictory provisions stipulating how the party president is to be appointed in the normal course of events.
Section 24(2) states that one of the functions of the party’s congress is to ‘elect the president’; section 35(1)(a) states that the party president is ‘elected nationally by party members’.
The possibility of confusion about the procedure to be followed doesn’t end there.
The constitution requires that all elections for party positions are to be conducted by the ZANU-PF electoral commission.
The nine-member commission is to be appointed by the president – a prerogative he is yet to exercise.
If Mugabe dies without the commission in place, the party constitution requires that one of the two vice-presidents is to make the appointments.
It does not state which one.
And one or both may themselves be contenders for the presidency.
These messy provisions are an open invitation for judicial intervention.
It is this consideration that may well be one of the factors informing the first amendment to Zimbabwe’s still-green 2013 constitution, driven by the Lacoste-controlled Ministry of Justice.
Much fuss was made about the restoration of the president’s power to choose the chief justice through the amendment, motivated by the retirement of the now-late chief justice Godfrey Chidyausiku in February this year.
In the event, the constitutional requirement to fill the post without undue delay was (sort of) followed.
In March, former deputy chief justice Luke Malaba was promoted to chief justice after public interviews and selection by a judicial service commission.
This was required by the country’s unamended charter and before the constitution was changed.
The consequently vacant post of the deputy chief justice, who should sit in both the Supreme and Constitutional Courts, has not yet been filled.
With the constitutional amendment becoming effective from 8 September, this duty now lies with the state president.
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