Yesterday, I did battle with Herald editor, Caesar Zvayi. But in the end, we shook hands and agreed that I would write an article, which The Herald would publish. This, I did and duly dispatched my contribution to Caesar. Caesar promptly responded and indicated that the article would be published in today’s issue. The article is, indeed, in today’s issue of The Herald, as promised http://www.herald.co.zw/legal-implications-of-appointment-to-be-vps/

Let me take this opportunity to publicly acknowledge Caesar for living up to his undertaking and also for the fact that the article has been reproduced in the manner that I wrote it. He has done an honourable deed on this occasion. Some readers of The Herald might find it too strong for their taste but the courage to publish it should be be acknowledged. I shall, from time to time, take up the standing invitation to contribute further, through that channel. There is no good reason why Zimbabweans must not benefit from different contributions in the pot of ideas.

I should also use this opportunity to say, in my opinion, this minor episode is a representation of what our nation badly needs at this moment. We can differ in so many ways, but at the end of the day, we must be able to find common ground, because it exists. We must be decent toward each other and share our differences without being hostile or fanning the fires of hatred.

I am aware, of course, that one episode does not change the course of events and that what has happened in the last 24 hours one minute dot on the bigger picture. But it gives us, the hopelessly hopeful ones, some reason to hope. What follows is a copy of the article as published in The Herald today:

Legal Implications of Appointments to the Vice Presidency

Alex T. Magaisa

The purpose of this article is two-fold: first, to respond to the commentary in The Herald yesterday on the issue of vacancies in Parliament arising from the appointment of the Vice Presidents and second and more importantly, to elaborate on the implications of constitutional breaches arising from these events.

The story ended with a broad accusation “misinformation, disinformation and misrepresentation” on my part regarding the true position of the national Constitution in these issues. I objected quite firmly, to that accusation and argued that, in fact what the paper had reported was exactly the same point that I had made in two previous articles as published on my blog, www.newzimbabweconstitution.wordpress.com

In further robust engagements with the editor, we eventually agreed that we were, in fact, of the same mind on the application of the Constitution and therefore that I had not misinformed on that issue. It was then that I offered to elaborate on the issue, which offer was accepted. This, therefore, is my contribution to the pot of ideas.

There are five points that I wish to make:

• First, that in terms of s. 129(1) (c.) of the Constitution, when an MP is appointed to the position of Vice President, his or her seat becomes vacant. This vacancy arises by operation of the law.

• Second, following directly from the above, that there were two vacancies in the National Assembly, arising from the appointment first, of Honourable JTR Mujuru on 11th September 2013 and more recently, Honourable ED Mnangagwa on 12th December 2014, to the Vice Presidency of Zimbabwe.

• The third is that there was a need to have by-elections to fill these vacancies pursuant to s. 158(3) of the Constitution.

• The fourth point is that since there had been no by-election following the vacancy in former VP Mujuru’s old constituency, there was an on-going breach of the Constitution.

• Finally, since the function and duty to call by-elections falls on the President and since the Zimbabwe Electoral Commission (ZEC) is responsible for supervising and organising elections, it was these institutions, namely the Office of the President and ZEC that were arguably in breach of the Constitution.

The core issue first arose when a reader of my blog asked whether it was possible for Honourable VP Phelekezela Mphoko to be appointed as Vice President when he was not an MP. It was then that I explained that a person did not have to be an MP to qualify for appointment as a Vice President but that in fact, if you were an MP, your seat would become vacant on account of s. 129(1)(c.) of the Constitution.

The qualifications for Vice Presidency are set out in s. 91 of the Constitution and being an MP is not one of them. I pointed out that because of s. 129(1) (c.), the newly appointed VP Mnangagwa’s seat in the Midlands, had also become vacant by virtue of his appointment.

The implication of all this, of course, was that the seat formerly held by erstwhile VP Mujuru had also become vacant when she was appointed VP on 11th September 2013. There had been a glaring omission for more than 12 months when that vacancy was not filled. No explanation has been offered as to why this did not happen.

It was on this basis that I took exception to The Herald’s charge that I had “misinformed, disinformed and misrepresented” on the law, when to my mind, I was probably the lone and first voice to have brought this issue to public attention through my blog. My views on these issues are motivated not by my political inclinations but by my belief in the importance and supremacy of the Constitution and that it must be upheld at all times, without fear or favour.

As someone who participated in the constitution-making process, as a technical advisor to Copac, I have always been ready and willing to share my thoughts on the Constitution, explaining to the public the meaning and implications of key clauses, especially as they apply to current affairs. It is for this reason that I started the blog.

It was in this spirit that I argued in the same vein, that the President had the powers to hire and fire the VP under s. 14(2) of the Sixth Schedule, at a time when most people believed that the applicable provision was s. 97 of the Constitution. I explained why s. 97 did not apply. I still believe that the President was misled and wrongly advised to dismiss VP Mujuru using s. 106 (2)(b) of the Constitution because there is a simple and more straightforward facility under s. 14(2) of the Sixth Schedule, as read with s. 340(1) of the Constitution, which states that,

“Except as otherwise provided in this Constitution, a power under this Constitution to appoint a person to an office includes a similar power – (f.) subject to this Constitution, to suspend or remove the person from office”.

Thus in addition to the fact that the VP serves at the pleasure of the President, the President could invoke his powers under s. 340(1) above.

Back to the issue at hand, while The Herald apportions blame to ZEC for failures in regard to dealing with the vacancy that arose on September 11th 2013, when former VP Mujuru’ seat became vacant , I believe there is a glaring omission and shifting of responsibility here, which is unhelpful. The story omits the fact that the responsibility for calling by-elections falls squarely on the President. By virtue of s. 129(1) (c.) the vacancy arises by operation of law and it does not become vacant because it has been declared as vacant. Any declaration is mere confirmation of an existing fact at law.

It is very easy to apportion blame to ZEC, as the paper has done, but the truth is that the entire system failed and/or neglected in performing its duties under the Constitution. This system consists of various parties, all of whom have a role in these matters. For example, the Speaker, as head of Parliament, should have known that a vacancy had occurred when one of the MPs became Vice President. The Clerk of Parliament, as the chief administrator of Parliament, should have noted the vacancy and advised the Speaker. For its part, ZEC as the supervisor of elections, should have noted the vacancy, too and advised the relevant authorities that a by-election needed to be held. But ultimately, the responsibility to call elections falls upon the President in terms of s. 110(2)(e.) and in terms of s. 158(3), both of the Constitution.
S. 110(2)(e.) states that,

“Subject to this Constitution, the President is responsible for – calling elections in terms of this Constitution”.

This means it is the President who has the constitutional obligation to call elections, including by-elections, which are provided for in the Constitution. The President’s office should have known after the appointment of VP Mujuru that a vacancy had arisen in the National Assembly and that it needed to be filled.
In this regard, s. 158(3) states that,

“Polling in by-elections to Parliament and local authorities must take place within ninety days after the vacancies occurred unless the vacancies occur within nine months before a general election, in which event the vacancies may remain unfilled until the general election”.

This means that the by-election in the constituency formerly held by former VP Mujuru should have been called by mid-December of 2013, when the 90 days from 11 September expired. The fact that this was not done is a glaring breach of constitutional duties and obligations on the part of those who have them.

It is important, in this regard to take note of the duties of the President as provided for in terms of s. 90 (1) are to “uphold, defend, obey and respect” the Constitution as the supreme law of the nation and must ensure that the Constitution and all other laws are “faithfully observed”. Arguably, failure to call the by-election as required by s. 158(3) and s. 110((2)€ qualifies as a breach of this duty. One must take cognisance of the precedent set in the Mawarire case before the July 2013 elections in which the court ordered that an election be held by July 31 to prevent a breach of the Constitution. The reasoning was that it was necessary to arrest the breach of the Constitution.

This matter needs to be corrected and a citizen does not have to go to court to ensure that corrective measures are taken. However, since there is a plain breach of the Constitution, it is important for Government to officially acknowledge and admit to its wrongdoing by omission and to apologise for the breach.
It is important that Government inculcates a culture of observing and upholding the Constitution and where it fails it must acknowledge the same and take corrective measures. When Zimbabweans voted for the new Constitution in the Referendum on 16th March 2013, they did so in an overwhelming manner, signifying a collective desire to establish a new constitutional order. Zimbabweans committed themselves to uphold and defend, among other values and principles, the supremacy of the Constitution, the rule of law and the recognition of and respect for the liberation struggle. They are all painfully aware of the sacrifices that were invested in the struggle for liberation, the values of which are enshrined in the national charter and which must be jealously guarded.

It is for this reason that it is critical that the Constitution be upheld, respected and defended, particularly by those holding high office, who are agents of the people from whom authority to govern is derived as confirmed in s. 3(2)(f.) of the Constitution and related provisions throughout the Constitution, for example, s. 88 which states that, “executive authority derives from the people of Zimbabwe and must be exercised in accordance with the Constitution.

Dr Magaisa is a Zimbabwean lawyer currently based at the University of Kent and was a technical advisor to the team that wrote the new Constitution of Zimbabwe. He can be reached at wamagaisa@yahoo.co.uk Visit his blog at www.newzimbabweconstitution.wordpress.com