At any rate, it is not open to the President, during the period in which an Acting President is in office, to exercise, on a random basis, the already delegated functions of his office. Executive authority cannot at that level be shared and once delegated, constitutional authority cannot, thereafter, be exercised by the delegate. The President cannot have it both ways.
Either he retains his authority in which event he exercises it or he delegates it, in which event he losses it for the period of the delegation. It is also clear that the President could not have validly nominated both his deputies to act as presidents on a rotational basis. In terms of the Constitution, he could only nominate one deputy at a time or “from time to time”. The unconstitutional act of appointing two deputies to act on a rotational basis is in my view deliberate and was meant to aid the President in his renunciation of the Constitution.
As a result, the country is currently operating under an illegal regime in which the President has not only abdicated his constitutional obligation to observe the law, but has altogether repudiated his position as President. The repudiation comes in that an absence from the country or an inability to perform functions, Executive authority cannot be delegated as has been done. The President not only having delegated the authority, but also having been prepared to share it with his deputies has by his objective actions repudiated his position as Head of State and government.
In terms of section 96 of the Constitution, the President can only resign his office by notifying the Speaker of Parliament in writing that he has done so. There is, however, no process required and none to be followed when the President repudiates his position. A sitting President is at large to repudiate his position either by word or conduct. Repudiation is itself a unilateral act and cannot be recalled. In the immortal words of the Shona, yadeuka yadeuka.
Zimbabwe has accordingly ceased to have a substantive President. In terms of paragraph 14(4)(a) of the sixth schedule, the last Vice-President to have acted in the position of the President, must now exercise complete Executive authority until his party nominates a substantive President in terms of paragraph 14(5) of the same schedule. That is a constitutional imperative.
Thabani Mpofu is an advocate at the Chambers, Harare
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