Court challenge to VP Mnangagwa post

via Court challenge to VP Mnangagwa post 11 December 2014

UNIVERSITY of Zimbabwe professor of law Lovemore Madhuku has approached the Constitutional Court challenging the appointment of Vice presidents Emmerson Mnangagwa and Phelekezela Mphoko.

The two were appointed by President Robert Mugabe Wednesday following the booting out of Joice Mujuru on allegations of plotting Mugabe’s violent ouster and corruption.

In an interview Madhuku said Mugabe will get his papers before the swearing in ceremony of the two vice presidents tomorrow morning (Friday).

“Our lawyers are busy with the papers as we speak and President Mugabe will be served with them before the ceremony tomorrow,” Madhuku said.

In his application Madhuku cites Mugabe as the first respondent, former justice minister Mnangagwa (second respondent), Mphoko (third respondent).

Madhuku argues that “The basis of the application is that the 1st Respondent is likely to infringe two fundamental rights enshrined in the Constitution of Zimbabwe, 2013 namely (a) the right to equality before the law and equal protection and benefit of the law protected by section 56(1) and (b) the right to administrative justice protected by section 68.”

“Yesterday, the nation had three major political developments. The first was the dismissal of the former Vice-President, Honourable Joice Teurai Ropa Mujuru. She was dismissed by the 1st Respondent. The second was the appointment of the 2nd and 3rd Respondents as Vice-Presidents of Zanu(PF). The third was an announcement that the 1st Respondent intends to swear the 2nd and 3rd Respondents into office as Vice-Presidents of the country. The latter ceremony appears scheduled for tomorrow (12 December 2014),” reads his opposing affidavit.

Madhuku said “the option of the President to appoint one or two Vice Presidents is only exercised soon after the President is sworn into office. Once the President has decided to appoint one vice President, he cannot change his mind and have two Vice Presidents during the same term of office. The President cannot replace Vice President Mujuru by two Vice Presidents. This is what paragraph 14, sub-paragraph 2 of the Sixth Schedule to the Constitution says. In specific terms, it says:

“Without delay the person elected as President in any election referred to in subparagraph(1) must appoint not more than two Vice-Presidents, who hold office at his or her pleasure”.

The opposing affidavit also states that “the 1st Applicant must be told by a declaration of this Honourable Court that for the duration of his five-year term ending in 2018, he can only appoint one Vice-President. If 1st Respondent would have appointed two Vice- presidents by the time this matter is determined, the appointments must be declared unlawful.”

Below is the affidavit

In the Constitutional Court of Zimbabwe
In the matter between
National Constitutional Assembly                                                               1st Applicant
And
Lovemore Madhuku                                                                                        2nd Applicant
And
President of Zimbabwe                                                                                1st Respondent
And
Emmerson Dambudzo Mnangagwa                                                         2nd Respondent
And
Phekezelela? Mphoko                                                                                 3rd Respondent

I, Lovemore Madhuku, do hereby make oath and state as follows:

1. The facts deposed herein are to the best of my knowledge and belief, true and correct. In addition, I have received legal advice. To the extent to which I make statements relating to the law, it is on the basis of the legal advice I have received and accepted.
2. I am the 2nd Applicant in this matter. I am the National Chairperson of the 1st Applicant, a political party operating in accordance with the laws of Zimbabwe. As National Chairperson of the 1st Applicant, I am its most senior leader. I have been authorised by the 1st Applicant to depose to this affidavit on its behalf.
3. I am also an applicant on my own behalf as a citizen of Zimbabwe by birth and entitled to the full protection of the law.
4. The 1st Applicant only transformed into a political party on 28 September, 2013 after over sixteen years (16) of work as a civic society organisation advocating for a new, democratic and people-driven constitution. It is a fact, deserving judicial notice, that the 1st Applicant has been an active player in the constitutional reform processes in Zimbabwe from its formation in May 1997. I will return to the nature and interests of the 1st Applicant below.
5. The 1st Respondent is the President of Zimbabwe, cited in his official capacity as the Head of State and Government and the Commander-in-Chief of the Defence Forces. These roles of the President are set out in section 89 of the Constitution of Zimbabwe, 2013.For purposes of this application, the President is cited as the person who has the power and authority to appoint Vice-Presidents in terms of paragraph 14(2) of  the Sixth Schedule to the Constitution of Zimbabwe, 2013.
6. The 2nd Respondent is Emmerson Dambudzo Mnangagwa, who was appointed yesterday as the 1st Vice President of the ruling political party, ZANU(PF). He is cited herein as person who may have an interest in the outcome of this application as he is most likely to be appointed as the First Vice-President of Zimbabwe.
7. The 3rd Respondent is P. Mphoko, who was appointed yesterday as the 2nd Vice President of the ruling political party, ZANU(PF). He is cited herein as a person who may have an interest in the outcome of this application as he is most likely to be appointed as the Second vice-President of Zimbabwe.
8. This application is in terms of section 85 of the Constitution of Zimbabwe, 2013. The 1st applicant is making the application both in the public interest in terms of section 85(1)(d) and in the interests of its members in terms of section 85(1)(e). I am acting both in my own interests in terms of section 85(1)(a) and in the public interest in terms of section 85(1)(d).
9. The basis of the application is that the 1st Respondent is likely to infringe two fundamental rights enshrined in the Constitution of Zimbabwe, 2013 namely (a) the right to equality before the law and equal protection and benefit of the law protected by section 56(1) and (b) the right to administrative justice protected by section 68.
10. I wish to revert to the nature and interests of the 1st Applicant, to put beyond doubt its locus standi.
11. **** PUT HERE SOME BACKGROUND INFORMATION(REFEREUNUMS CASE)
12. As a political party, the 1st applicant has participated in six local authority by-elections held since January 2014. In each of the by-elections, it has obtained not less than five percent of the valid votes cast.
13. Yesterday, the nation had three major political developments. The first was the dismissal of the former Vice-President, Honourable Joice Teurai Ropa Mujuru. She was dismissed by the 1st Respondent. The second was the appointment of the 2nd and 3rd Respondents as Vice-Presidents of ZaNU(PF). The third was an announcement that the 1st Respondent intends to swear the 2nd and 3rd Respondents into office as Vice-Presidents of the country. The latter ceremony appears scheduled for tomorrow(12 December 2014).
14. The appointments of two Vice-Presidents to replace one Vice-President is unconstitutional. It is not permitted by paragraph 14(2) of the Sixth Schedule to the Constitution of Zimbabwe, 2013. The 1st Respondent therefore intends to act contrary to the law, thereby infringing the rights of both the 1st applicant and myself. Acting contrary to law is a direct infringement of the right to equality before the law and the equal protection of the law. For in acting contrary to the law, the 1st Respondent is placing himself above the law. He is more equal than others. Further, the law was put in place for the benefit of all. If it is breached without a remedy for us, our right to the benefit of the law is extinguished. The issue of infringement of administrative justice is made below.
15. I now illustrate the nature of the unlawfulness in appointing two Vice-Presidents to replace one Vice-President. My legal practitioners will develop the full legal arguments in terms of the practice and procedure of this Honourable Court.

1. The option of the President to appoint one or two Vice Presidents is only exercised soon after the President is sworn into office. Once the President has decided to appoint one vice President, he cannot change his mind and have two Vice Presidents during the same term of office. The President cannot replace Vice President Mujuru by two Vice Presidents. This is what paragraph 14, sub-paragraph 2 of the Sixth Schedule to the Constitution says. In specific terms, it says:

“Without delay the person elected as President in any election referred to in subparagraph(1) must appoint not more than two Vice-Presidents, who hold office at his or her pleasure”.

1. “Without delay” is a very clear expression. The nation must know, right from the start, whether the President will have one or two Vice-Presidents. Once he makes his decision, he is not given power to change his mind during the course of his five-year term. This is perfectly sensible. The president made his decision in August 2013. He decided to have one Vice-President. That is the end of the matter. He can only appoint one Vice-President for his entire five-year term. The President cannot swing from one to two and back to one and then again to two and so on in one term of office. The only significance of the expression “without delay” is to force the President to make an election at the beginning of the term. Once he makes his election, he is bound for the entire duration of his five-year term.
2. There are many good reasons why the Constitution so provides. One is cost to the nation. In terms of section 102, a person who has ceased to be Vice-President earns a pension for life which is equivalent to the salary of a sitting Vice-President. The nation must prepare for the costs involved and this must be known at the beginning of the term of the President. If the President appoints two Vice Presidents, the nation will be paying for three Vice-Presidents including former Vice President Mujuru. The nation had not contemplated such a state of affairs since the President, for one and half years after his election, was working with one Vice President.
3. Alternatively, even if the President were to have the power to change his mind, he cannot do so without explaining to the nation the reasons for having two Vice-Presidents when the nation has done has operated with one Vice-President for one and half years. His explanations are required for him not to infringe the right to administrative justice protected by section 68 of the Constitution of Zimbabwe, 2013.
4. Further to paragraph 19, the President is not allowed by section 68 to use purely partisan considerations to change his mind from one to two Vice-Presidents. It is common cause that in appointing two Vice-Presidents at this juncture, the 1st Respondent is exclusively concerned with affairs of ZANU(PF).  He is not acting impartially in making the administrative decision to have two Vice-Presidents. The 1st Applicant and myself are entitled to administrative conduct that is “lawful, efficient, reasonable, impartial and both substantively and procedurally fair”. We had a legitimate expectation that the country will continue to have one Vice-President.
5. The 1st Applicant must be told by a declaration of this Honourable Court that for the duration of his five-year term ending in 2018, he can only appoint one Vice-President. If  !st Respondent would have appointed two Vice- presidents by the time this matter is determined, the appointments must be declared unlawful.

Wherefore I pray for an order in terms of the Draft Order.
Thus sworn to at Harare this_____________ day of December, 2014.

Lovemore Madhuku

Commissioner of Oaths

DRAFT ORDER

1. It is hereby declared that the 1st Respondent, having decided to appoint one Vice-President at the beginning of his term as the President of Zimbabwe, can no longer appoint two Vice-Presidents for the duration of his five-year term ending in 2018.
2. Accordingly(if two Vice-Presidents have already been appointed), the appointment of two Vice-Presidents be and is hereby declared null and void.

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