What happens if Mugabe dies?

But, with speculation about Mugabes ill health rife and more plausible than usual, an analysis of the legal position has revealed an almost unfathomable hotch-potch of unclear and easily mis-interpretable legislation.

And despite this welter of words, it is not beyond the bounds of possibility that those interested in assuming power might not simply declare the constitution suspended and place Zimbabwe under formal military rule, writes Derek Matyszak of the Research and Advocacy Unit.

Matyszaks comprehensive analysis of the legal situation is available on our website at: www.thezimbabwean.co.uk.

It includes these facts:

Under Section 29(3)(b) of the Constitution, if the president becomes incapable of performing the duties of his office by reason of mental or physical incapacity he will cease to hold office if a joint committee of the Senate and House of Assembly formed at the request of a two thirds majority of Parliament so recommends.

This provision was supplemented in 2007 by Constitutional Amendment No 18, drafted specifically with the possibility of Mugabes sudden death or retirement in mind. Section 28(2)(b) of the current constitution now provides that if the office of the president becomes vacant by reason of death, resignation or removal from office, the two Houses of Parliament will come together as an electoral college to elect a new president, who will remain in office until the next election.

However, since the enactment of the Constitutional Amendment No 19, (which incorporated, almost verbatim, Article 20 of the appallingly drafted Inclusive Political Agreement) little is clear and free from ambiguity in relation to the composition of Zimbabwes government, comments Matyszak,

One of the most glaring anomalies is that Zimbabwes constitution is unique in that it does not merely provide that Zimbabwe is to have a president, but it is a constitutional requirement that the president is a specific individual, Robert Gabriel Mugabe. On the death of Mugabe there can obviously be no compliance with this provision. It is unusual that constitutional provisions are drafted in such a way that their implementation may be avoided on account of an act of God.

However, from this provision it may be inferred that the legislature did not contemplate that the post of presidency would be occupied by any other person during the subsistence of the Global Political Agreement (GPA19), and thus that no provision was made for the contingency.

It is also a constitutional requirement that the Prime Minister is Morgan Tsvangirai, and no one else.

This ambiguity in the law to be followed upon Mugabes sudden death, when considered alongside the uncertainties of Zanu (PF)s succession politics, has the potential to turn a messy situation into a thoroughly chaotic scenario, as each contender endeavours to apply an interpretation of the law which is most advantageous to him or her, says Matyszak.

Past displays of ruthlessness by competing factions within Zanu (PF) over the succession issue suggest that this is not a prospect to be welcomed. The partys constitution also contains no clear provisions as to what is to happen on the demise of its president.