The Constitution and the Vice Presidency: A reply to replies

The Constitution and the Vice Presidency: A reply to replies | The Herald 20 December 2014 by Alex T. Magaisa Correspondent

I HAVE read two articles carried by The Herald yesterday, both in response to my two articles that the paper had published earlier in the week. These
responses are good for the debate that our nation requires on these issues and one must hope that this paper carries on in that fashion – different views for readers, who must exercise their right and wisdom to make good judgment. I therefore welcome the responses made by my fellow countrymen and now wish to make a rejoinder, on the issues raised.

The two articles are very different, one by Joram Nyathi, the Group Political Editor at Zimpapers, dwells more on the political side while the one by Itayi Garande attempts to dwell on the legal issues. Both gentleman are known to me and we have previously debated on various issues in the past. I have some sympathy for both although I am not entirely in agreement with the views expressed by Nyathi but I am not persuaded by the legal arguments presented by Garande. I will deal with both contributions in this piece.

There are two issues that Nyathi discusses in his response. The first is whether VPs can also hold ministerial posts. The second is whether an MP loses his or her seat upon becoming the VP. Garande dwells mainly on the second issue.

Unlike Garande, I do not think Nyathi has serious qualms over the legal interpretation of the constitutional clauses on these questions. His response is on the political grounds or rationale for the constitutional rules as they presently exist. He is not satisfied that there is sufficient political rationale for the constitutional rules. Let me clarify two things here:

These matters are both legal and political, but one has to be extremely careful not to confuse the two. It is possible to have a purely legal analysis of the law and then also, quite separately, to engage in a political analysis of that law. It is also possible to have a clear idea of what the law states but also to have a view on what the law ought to be. These are two separate things. But if you mix the two, you can very easily get yourself into a legal and political labyrinth from which it is extremely hard to find a way out.

I prefer to separate them and in the first exercise, the legal analysis, I do so with my hat as a lawyer and it is with that hat that I analysed these provisions. In this legal exercise, the questions are quite simple:

What are the applicable legal provisions? What is the legal meaning of those provisions? How do they apply to the facts? There is no room in this
exercise for whether or not these are good or bad rules or whether or not you like them. There is no attempt in this exercise to justify them. It’s a very mechanistic, dry exercise – rather like fitting the jig-saw puzzle together. Let me illustrate this exercise in respect of the first issue:
Can a VP also administer a ministry at the same time?

The applicable provisions are s. 99 and s. 104(1) and, as I stated, they permit a VP to be assigned a ministry to administer. Having identified the legal provisions and understood their meaning, I then applied them to the facts and found that it was constitutionally permissible to assign a VP to administer a ministry.

One can then engage in the second but separate exercise, which questions the political rationale and wisdom of such an arrangement. This was, however, not the primary task of my article. It was not focused on the political debate as to whether this legal arrangement was right or wrong.

My error, however, was that I made a general remark as if I was giving a political justification for the arrangement. I said: “The Constitution permits it. This may not be the ideal situation but the Constitution allows it.”

I made that remark not as political justification of the arrangement but merely to say that legally it was permissible. In fact, when I said this may not be ideal, there was an implication of my own view there, which is that I do not think it is a good thing to do. But I did not follow it through, largely because I wanted to focus more on the legal question, rather than the politics.

Nyathi seems to have read it as a political justification, which it was not intended to be, but I cannot blame his interpretation. The error is mine, because I should not have made that remark if I was not going to explain it in more detail. I assumed, wrongly as it now appears, that it would be understood as a legal justification and not a political one. But let me clarify my political view on the matter.

I do not think that it is the right thing for a VP to also be given the role of a Cabinet minister. I believe that the Presidency should sit in the proverbial balcony, maintaining a view of the bigger picture and supervising and giving direction to the Government as a whole. If a VP is assigned a single ministry, his or her attention is likely to be drawn towards that ministry, at the expense of the others, which would not be fair.

However, it is important to note that this is not the first time that a VP has been given a specific function – the late VP John Nkomo was part of the Organ on National Healing, Peace and Reconciliation during the inclusive Government. This was a ministerial function which was co-chaired alongside two ministers from the MDCs. The Ministry of Justice, however, is a fully-fledged ministry that has always existed as a distinct entity hence the concerns that have been raised. Why President Mugabe chose this route is really for him to explain. We can only speculate.

Perhaps he realised that the Vice Presidency is by and large an empty shell and one can easily become idle unless they have a substantive portfolio to run. Idleness can be a dangerous thing, as an energetic and adventurous mind can be led to occupy himself with other things. To prevent this, President Mugabe may have decided to occupy minds with ministerial portfolios. But this is all speculation really. As a matter of transparency, he may be well advised to explain this arrangement to members of the public.

I must add another point though, which is often overlooked: one of the main objections to a dual vice presidency is the economic burden it imposes on the nation with a fragile economy. During the constitution-making process, there was a heated debate on this issue and I shall address it in a separate piece. However, one of the concerns was the economic cost of two VPs relative to the work they had to do. Now, if the VPs are actually given ministries to run, thereby obviating the need to appoint additional ministers, it might be argued that it saves costs.

Let me move on to the second issue, which is afflicted by the same issues but has legal questions raised by Garande, which need correction. The legal question is whether an MP loses his seat upon becoming a Vice President. The legal provision on this is s. 129(1)(c.) The effect of this provision is that when an MP becomes a VP, he or she loses his parliamentary seat. Applying it to the facts, when Mrs Mujuru and Mr Mnangagwa were appointed VPs, their seats became vacant by operation of law. This is the law and it is the law that I sought to address.

Garande seems to argue that s. 129(1)(c.) under which a new VP loses his or her parliamentary seat does not apply because it was designed to apply in situations where a VP is elected as a running mate under s. 92, which is presently suspended. According to this view, s. 129(1)(c.) is only applicable when the running mates provisions under s. 92 begin to operate because under that system, VPs are elected jointly with the President.

This argument does not make sense and is untenable for two reasons which I must explain:

First, since under the running mates system, which is suspended, VPs are elected jointly with the President, it is not possible for a VP to be an MP first before he or she is a VP because elections for the Presidency and for Parliament are held concurrently. If you are a running mate for a presidential candidate, you cannot be a candidate for a constituency seat at the same time. Therefore, as a general rule, s. 129(1)(c.) is almost redundant under the running mates system. It cannot and does not arise in a situation where VPs are elected together with the President because they cannot be MPs in the first place.

The section would only be useful in exceptional circumstances, where a need arises to replace a VP. In this regard, in terms of s. 101(2)(b) if the first VP dies, resigns or is removed from office, the second VP is elevated to first VP and the President must appoint a new second Vice President to complete the term. If this new appointee is an MP, his seat will become vacant in terms of s. 129(1)(c.).

The second reason for the weakness in Garande’s argument is more technical. It is trite that a constitutional provision applies unless it is specifically suspended or limited by law. This is why s. 92, which provides for a running mates system of presidential elections, did not apply to the elections in July 2013 because s. 14(1) of the Sixth Schedule specifically suspended it.

The same would apply if s. 129(1)(c.) on the vacancy of a parliamentary seat upon becoming a Vice President was specifically suspended. This is not the case. There is no provision that says it is suspended.

One might wish that it should have been suspended by the simple fact is that it is not suspended and therefore applies. We or the courts cannot suspend its operation because we think it should not apply. We do not make law. That is the job of Parliament. This is why I make the remark that if there is an unsatisfactory constitutional position, the best route is to amend the provisions.

Garande’s proposition is that s. 129(1)(c.) should be read “in the spirit of the law” and for that reason must be read to refer to “elected Vice Presidents”. This is a dangerous territory. The basic rule of interpretation is that you must apply the ordinary meaning of a clause and I cannot see any sound reason why we must add words such as that it refers only to elected Vice Presidents, as Garande proposes, because as I have explained above, s. 129(1)(c.) cannot apply to elected VPs since they can never be MPs in the first place!

An elected VP can never lose his or her seat in Parliament because he or she would never have contested for such a seat. Garande does not tell us that s. 129(1)(c.) is suspended and he does not provide a sound reason why it should be ignored.

Now, there is also the political question, which Nyathi dwells on. Is it right that an MP should lose his seat upon becoming a VP?

I think this raises a wider political debate. It was not my primary concern in explaining the legal provisions. I did make the error though of trying to give very brief political justification for this rule, which Nyathi rightly picked on.

This is a debate that we can engage in, but as long as we agree that it has nothing to do with what the correct legal position is and that it is unaffected by what we think the law should be. What the law is and what the law ought to be are two different enquiries.

I was interested in the first and should have stuck to it without getting into the political justifications of whether or not it was the right thing. Nyathi wants us to engage the latter question more and says he is unconvinced by the political rationale of the rule.

I can understand his concerns and his queries have given me even more energy to complete my book, which I have been working on throughout most of this year, which explains key constitutional provisions, how they were
negotiated, the political arguments and rationale for them. It is a book that I think will interest many Zimbabweans because it seeks to provide some explanations as to why we have these rules – the good, the bad and the weird provisions of our Constitution.

Back to the question – personally, I think as long as we retain the Presidential system of government, it is fair that when a person is elevated to the Vice Presidency, he should no longer be an MP for a constituency. The Presidency is a national institution, which caters for the entire country. If you have an MP from Mberengwa, to use Nyathi’s example, who is also a Vice Presidency, there is the hazard that he or she will be more inclined towards serving his Mberengwa constituency under the cover of carrying out his MP’s duties.

If the President does not have a constituency, why should his deputy, who might succeed him in the event of death, resignation or removal, be allowed to keep a constituency? It seemed to me that Nyathi was not persuaded by the political justification of a VP also holding a ministerial office simultaneously. If anything, it should make sense therefore, using the same reasoning, that a VP should not also continue to hold the office of MP.

My own view was that we should have done away with the Presidential system, especially the Executive Presidency. My preference was a system in which people voted for political parties and the majority party selected a leader who would also sit in Parliament and be accountable directly to Parliament, as is the case in South Africa. But this model did not find favour during the constitution-making process. This is a much wider debate, which cannot possibly be covered in this response.

But I just thought it would be necessary to say, no, when I comment on these issues, it is not that I support the current system as provided for in the Constitution. The Constitution was a product of heavy political compromise. Not all of it is to my taste. But when I present what it says, I try to do so dispassionately, without letting my thoughts and feelings on it interfere with my analysis of the law. Needless, to say, this is a difficult task and I am not always successful in my endeavours!

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