via Attorney-General appointed. 1 March 2015 by Veritas
BILL WATCH 7/2015
[28th February 2015]
Parliament Will Sit Again on Tuesday 3rd March
At the end of their sittings on Thursday 19th February both the Senate and the National Assembly started a week-long break by adjourning until Tuesday 3rd March. At the same sittings the presiding officers announced that all committee business would also be suspended until Monday 2nd March.
Attorney-General Appointed
Advocate Prince Machaya was sworn in as Attorney-General on Wednesday 25th February. The post of Attorney-General has been vacant since the former Attorney-General, Mr Tomana, automatically became the Prosecutor-General on 22nd August 2013, in terms of paragraph 20 of the Sixth Schedule to the Constitution.
Mr Machaya was appointed by the President in terms of section 114 of the Constitution. Until his appointment he had been filling the vacancy in an acting capacity. He has been a Deputy Attorney-General since 2007.
The Attorney-General’s functions are listed in that section:
• principal legal adviser to the Government
• representing the Government in civil and constitutional proceedings
• drafting of legislation on behalf of Government
• promoting, protecting and upholding the rule of law and defending the public interest
• any other functions that may be assigned to the Attorney-General by an Act of Parliament.
Section 114 of the Constitution also empowers the Attorney-General:
• to attend Cabinet meetings, but not to vote
• to sit and speak in the Senate and the National Assembly, but not to vote
• to appear as a friend of the court [“amicus curiae”] in any civil proceedings to which the Government is not a party.
Under the former Constitution, the Attorney-General was also responsible for all public prosecutions, but under the present Constitution that responsibility is assigned to the Prosecutor-General. In addition, many statutory functions that were formerly allotted to the Attorney-General by Acts of Parliament have been transferred to the Prosecutor-General by amendments to those Acts made by the National Prosecuting Authority Act [Act 5/2014, section 33 and Fourth Schedule, effective 2nd January 2015].
There is an Attorney-General’s Office Act [Act 4/2011] that dates from June 2011 but has never been brought into force. A Bill to amend the Act was gazetted in February 2013 but never introduced into Parliament; the Bill’s main effect would have been to make the Attorney-General the chairperson of the Attorney-General’s Office Board and make Deputy Attorneys-General ex officio Board members.
Comment: A feature of the present Constitution is that the Attorney-General is not given the independence and security of tenure given to the holder of this office under the previous Constitution – and by the Prosecutor-General under the present Constitution.
Instead, the Attorney-General holds office at the President’s pleasure – section 115 of the Constitution states that the President may remove an Attorney-General from office at any time. This is the same precarious tenure as that of Ministers and the Vice-Presidents. The office of Attorney-General deserves better because, notwithstanding the loss of its former prosecutorial role, the responsibilities of the office are such that the incumbent should in principle enjoy the same independence and security of tenure as the Prosecutor-General – including the safeguard that the procedure for removal from office should be the procedure for removal of judges].
New Minister for Masvingo Province
Senator Shuvai Mahofa is the new Minister of State for Provincial Affairs for Masvingo Province. Her appointment by the President was officially announced on 23rd February and she was sworn in by the President on 26th February. She replaced Hon Bhasikiti, whose dismissal by the President was announced on 19th February.
Electoral Court Judges
The Judicial Service Commission has announced the appointment by the Chief Justice as judges of the Electoral Court of four High Court judges: Justices Chinembiri Bhunu, Tendai Uchena, Andrew Mutema and Martin Makonese. The obvious intention is to have an operational Electoral Court for the purposes of the current crop of by-elections.
The appointments are for the six-month period 16th February until 15th August. They have been made in terms of section 162 of the Electoral Act – a section which is inconsistent with section 163 of the Constitution [“… a person must not be appointed as a judicial officer of more than one court”]. This problem has been mentioned in previous Veritas bulletins. Section 162 of the Electoral Act was not brought into line with the Constitution by last year’s Electoral Amendment Act, as it could and should have been.
Jurisdiction of Electoral Court Section 161 of the Electoral Act gives the Electoral Court “exclusive jurisdiction” to hear appeals, applications and petitions in terms of the Electoral Act and to review any decision of the Zimbabwe Electoral Commission or any other person made or purporting to have been made under the Act. This covers a wide range of potential cases, from voter registration disputes to election petitions by unsuccessful candidates.
ZANU-PF Nominee for Senate Manicaland Party-list Seat
The Zimbabwe Electoral Commission has gazetted ZANU-PF’s nomination of Mr Tongesayi Shadreck Chipanga to fill the Senate vacancy created by the death of Senator Kumbirai Kangai in August 2013 [GN 33/2015, replacing GN 29/2015 of 20th February, published in error]. Objections to Mr Chipanga’s nominations may be submitted to ZEC up to and including Monday 9th March [14 days after the publication of the GN]. If no valid objections are submitted, ZEC will gazette another notice declaring him to be appointed as a Senator.
Wedza North By-Election Called
The President has ordered the holding of a by-election to fill the vacancy in the National Assembly constituency seat for Hwedza North [SI 23/2015 of 20th February]. The vacancy has existed since the death of the former holder, Hon Musanhu, on 15th January.
Nomination day The nomination court will sit on Monday 16th March at the Magistrates Court, Marondera.
Polling day will be Friday 15th May [a date which is four weeks later than it should have been – as pointed out in Bill Watch 6/2015 of 18th February, to comply with section 158 of the Constitution and section 39(2) proviso (ii) of the Electoral Act, polling day should have been no later than 15th April; because those provisions require polling in a by-election to take place within 90 days after the occurrence of the vacancy.
Chirumanzu-Zibagwe and Mount Darwin West By-Elections
The Zimbabwe Electoral Commission has gazetted the names of the candidates whose nominations were accepted by the nomination courts on 29th January [GN 30/2015 of 20th February]. They are:
Chirumanzu-Zibagwe Mrs Auxillia Mnangagwa [ZANU-PF]; Mr Gadzamoyo Dhewa [Good People’s Movement Party]; Mr Munashe Mutodza [NCA]; Mr Willbroad Kanoti [Independent]; Mrs Abigail Musambasi [Transform Zimbabwe].
Mount Darwin West Mr Barnwell Seremwe [ZANU-PF]; Mr Kenard Fungai [Transform Zimbabwe]; Mr Cyril Muradzi (Freedom Front]; Mr Rueben Mafigu [NCA].
Polling day is Friday 27th March. Polling stations will, in accordance with the Electoral Act, be open from 7 am to 7 pm.
Further ZANU-PF Vacancies to be Expected?
MPs expelled from ZANU-PF Developments within ZANU-PF suggest the possibility of further Parliamentary vacancies necessitating by-elections. Last week it was announced that the ZANU-PF Politburo had expelled two MPs from the party: former Minister of State for Presidential Affairs Didymus Mutasa, MP for Headlands, and Hurungwe West MP Temba Mliswa. ZANU-PF Dr Chombo, the secretary for administration elected by the December ZANU-PF congress, has since given written notice to the Speaker that both individuals have ceased to belong to ZANU-PF. Normally this would mean that their seats immediately become vacant, in terms of section 129(1)(k) of the Constitution. But Mr Mutasa has written to the Speaker denying the validity of the expulsions, and indeed the party congress and everything done at it and since. He has also said his court proceedings to establish this are imminent.
The Speaker has said he will deal with this correspondence when he returns to his office on 2nd March. It remains to be seen whether the Speaker will follow what he did when the MDC-T attempted to invoke section 129(1)(k) of the Constitution against MPs aligned to the MDC Renewal Team in similar circumstances. In May 2014 the Speaker said that the situation in the divided MDC-T was a matter for decision by a court, not for Parliament or its presiding officers; and in November he maintained this position, saying the court proceedings launched had not been finalised.
“Independent” MP readmitted to ZANU-P It was also announced last week that the ZANU-PF MP for Mudzi South, Jonathan Samukange had been readmitted to the party. [It will be remembered that Mr Samukange, although a long-time ZANU-PF member, insisted on standing against the official party candidate in the 2013 harmonised elections and as a result, according to the party political commissar at that time, Webster Shamu, was automatically expelled from the party.] In making last week’s announcement the party spokesperson acknowledged that this meant a by-election was probable. This is because section 129(1)(l) of the Constitution provides that a vacancy automatically occurs if an MP, who was not a member of a political party when elected, becomes a member of a political party.
Government Gazettes of 20th, 23rd and 27th February
Statutory Instruments [SIs]
Collective bargaining agreements SI 22/2015 publishes the minimum wages to be paid to skilled workers in the construction industry effective from 1st October 2014; SI 25/2015 publishes the minimum wage for the kapenta sector of the agricultural industry effective from 1st July 2014.
Wedza North by-election SI 23/2015 [see above].
Customs duty suspensions SIs 24 and 26/2015 provide for suspensions of duty in respect of six named mining locations.
General Notices [GNs]
Nomination to fill Manicaland Senate vacancy GNs 29 and 33/2015 [see above].
Chirumanzu-Zibagwe and Mt Darwin West by-elections GN 30/2015 contains the official announcement by the Zimbabwe Electoral Commission of the candidates nominated in these two by-elections [see Bill Watch /2015 of .
Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied
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