Note: This week, the Zimbabwe Independent asked for an opinion on the issue regarding the constitutionality of the manner in which the two new Vice Presidents were sworn-in in December last year. This is my opinion, a version of which is exclusively published in today’s issue of the Zimbabwe Independent: http://www.theindependent.co.zw/2015/02/06/lawyer-wades-vps-legality-storm/

Constitutionality of Swearing-in Vice Presidents

Alex T. Magaisa

The question is over the legality of the procedure used to swear-in the new Vice Presidents in December 2014. The new VPs were sworn in by President Mugabe. There are two views on this, based on the new Constitution.

The first is that this was illegal, since the new Constitution requires that the Vice Presidents must be sworn in by the Chief Justice or in his absence, the next most senior judge. This is in accordance with s. 94 which states as follows:
“(1) Persons elected as President and Vice-Presidents assume office when they take, before the Chief Justice or the next most senior judge available, the oaths of President and Vice President respectively in the forms set out in the Third Schedule …”
The second view is that there was nothing unlawful with the process whereby the swearing-in ceremony was conducted before the President.
In my opinion, there is an omission in the Constitution, regarding the swearing-in of appointed Vice Presidents and I do not think the process that was used was unlawful. Between the two views therefore, I am inclined to agree with the second.
But in the interests of balance, I want to consider both views in order to demonstrate why I am inclined with the view that the swearing-in process before the President was not unconstitutional, as others have suggested.

In regard to the first view, let us consider s. 94, which requires that the Vice Presidents must be sworn-in into office before the Chief Justice. Two issues arise from this clause:
First, since it specifically refers to “persons elected as President and Vice Presidents”, does it mean, in the case of Vice Presidents, that its application is confined to those that are elected, as opposed to where they are appointed?

An ordinary meaning of that clause would suggest that it only applies where the Vice Presidents are elected. There would have been no reason to refer to them as “elected” if that was not important. Indeed, this provision sets out the time-limits to be observed and these time-limits are based on the event of the election of the Vice Presidents.

The implication of all this is that where Vice Presidents are appointed, this provision would not apply. In other words, it would not be necessary to follow that procedure whereby the swearing-in is done before the Chief Justice. This is not to say it would not be desirable. It would be desirable even where Vice Presidents are appointed, to follow that procedure but, at the same time, it would not be unlawful not to follow it.

But this interpretation can land us into a legal labyrinth. This relates to the issue of replacing Vice Presidents, where the elected incumbents would have been removed or lost office. The Constitution envisages situations where an elected Vice President may have to be replaced. S. 97 provides for the removal of the Vice President from office.

Further, s. 101 deals with how a resulting vacancy in the Vice Presidency is filled. The effect of s. 101 is that when a vacancy arises in the Presidency, the first Vice President is elevated to fill that office, the second Vice President becomes the first Vice President and therefore a new second Vice President would have to be appointed. How is this new Vice President sworn-in to take office if s. 94 only applies to the swearing-in of an “elected” Vice President?

This represents the gap in the Constitution because there is no specific provision providing for how such an appointed Vice President is to be sworn-in to office. In other words, while s. 94 deals with the swearing in of “elected” Vice Presidents which must be administered by the Chief Justice, there is no equivalent provision which deals with the swearing-in of an “appointed” Vice President, where that Vice President is replacing an elected Vice President in terms of s. 101(1)(c.) or s. 101(2)(b).
Therefore, if we use the literal interpretation of s. 94, which refers to the process of swearing in “elected Vice Presidents”, we are left with an absurd situation in the case of an “appointed” Vice President, where there is no procedure for swearing him or her into office. One way to deal with this would be to read s. 94 more liberally, purposively and generously and therefore disregard the “elected” part so that even where Vice Presidents have been “appointed”, it will still apply and the swearing-in process must be done by the Chief Justice.

This is the only way to support the argument that is being advanced by those saying the Chief Justice and not the President should have presided over the swearing-in ceremony. But others might argue that this is stretching the language of the Constitution too far. They would argue that the words “elected” and “appointed” are so different that they cannot possibly be read interchangeably.

This is all very important, notwithstanding the fact that the provision that I have used here to make this argument (s. 101) is currently not in operation. It is important because in terms of s. 14(2) of the Sixth Schedule of the Constitution, Vice Presidents are appointed by the President. The same question therefore arises: Who is responsible for swearing in these “appointed” Vice Presidents? Is it the Chief Justice, in terms of s. 94 or can the President do it, as President Mugabe did in December 2014 when he presided over the swearing-in of VP Mnangagwa and VP Mphoko and 11 September 2013 in the case of former VP Mujuru?

I have already pointed out that a literal reading of s. 94 would mean that the Vice Presidents could not have been sworn in by the Chief Justice because they were not “elected” Vice Presidents as provided for in that section.

I have also ventured to suggest that this literalist reading might lead to an absurdity, since it would mean that a Vice President who is appointed to replace an elected Vice President under s. 101, if it were in application, could not be sworn in at all in terms of s. 94. I would think, therefore that such an appointed VP could still be lawfully sworn-in by the Chief Justice in terms of s. 94.

But would it be fatal if instead, the President administered the swearing-in process, as President Mugabe did? My view on this is that it would not be fatal.

But on what basis would he have administered the swearing-in process of the Vice Presidents, if not under s. 94? In my view, the relevant provision is the little-used but quite powerful s. 342 of the Constitution. This provision relates to the exercise of powers conferred under the Constitution. It states, in the relevant part (s. 342(3)), that,

“Where a power, jurisdiction or right is conferred by this Constitution, any other powers or rights that are reasonably necessary or incidental to its exercise are impliedly conferred as well.”

This means that if a public authority has been given power under the Constitution, it will be entitled to exercise any other powers or rights that reasonably follow from its exercise. To give a simple example, if you have the power to make an appointment, then surely you have the power to call for applications and to conduct interviews in order to make the appointment. These powers are reasonably necessary for you to exercise the power of making an appointment. There has to be the primary power and then there are other things that you can do in order to or as part of exercising that power.

In this case, the President is given the power to appoint Vice Presidents under s. 14(2) of the Sixth Schedule of the Constitution. But there is no specific provision on how such appointed Vice Presidents are to be sworn in (if it is accepted that s. 94 applies only to elected Vice Presidents). Yet, the swearing-in of the Vice Presidents must be done for it is a process and power that is reasonably necessary in order to exercise the power of appointment.

It can also be argued that the swearing-in of an appointed Vice President is incidental to the power of appointment. It would be absurd if an appointment could not be effective simply because there is no-one to swear-in the appointees. For that reason, the President may therefore lawfully swear-in an appointed Vice President using the broad powers under s. 342(3).

This might be regarded by some as undesirable but it is one way of resolving the conundrum caused by the omissions in the Constitution which does not specifically provide for how appointed Vice Presidents must be sworn-in to office. Under this argument, it cannot be said that the President acted illegally in swearing-in the Vice Presidents.

The conclusion is that in the absence of clarity in the Constitution as to how appointed Vice Presidents are sworn in, there are two equally plausible ways of looking at it and using either way would still fall within the bounds of constitutionality.

wamagaisa@yahoo.co.uk