President Mugabe May Have Erred in Firing Vice President Mujuru

via President Mugabe May Have Erred in Firing Vice President Mujuru | newzimbabweconstitution 10 December 2014 by Alex Magaisa

I have just read a document which supposedly states the ground upon which President Mugabe has fired his Vice President, Joice Mujuru. Assuming that document is true, then the President appears to have made a big error at law and exposed his decision to unnecessary contestation. I will explain why.

In terms of that document, Mujuru has been relieved of her post on the basis of s. 106 (2b). For a start, there is no s. 106 (2b) in the Constitution. However, we shall assume that is a typographical error and that what he meant was s. 106(2)(b) of the Constitution.

That provision states that, “Vice-Presidents, Ministers and Deputy Ministers may not, during their tenure of office— (b) act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests”.

In the document, it is said that it has become “evident that her conduct in the discharge of her duties had become inconsistent with the expected standard, exhibiting conflict between her official responsibilities and private interests”.

Therefore in firing her, President Mugabe has now given his reasons, albeit in vague form. Unfortunately, he has stated these reasons as facts when in reality they are simply allegations, which have not been proven in a court of law or anywhere. He might say it is “evident” but that does not make them “facts”. They are merely allegations which have not been proven. Mujuru has not been given an opportunity to be heard or to defend herself before an impartial forum as is required by the Constitution, which is the supreme law of the land.

Section 69 of the Declaration of Rights provides that every person has a right to a fair hearing. This is a codification of basic principles of natural justice. It provides that, “Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court.” It also provides that “In the determination of civil rights and obligations, every person has a right to a fair, speedy and public hearing within a reasonable time before an independent and impartial court, tribunal or other forum established by law”. It is clear that the moment President Mugabe uses s. 106(2)(b) which is about the alleged misconduct of a person, that person must be given a fair hearing, to determine whether or not it is true. Mujuru has not had a fair-hearing, particularly in respect of the allegations made against her. Congress is not a judicial forum but a form of rule by the mob. It does not, by any stretch of imagination, qualify as an impartial forum.

In addition, s. 68, which provides for the right to administrative justice states that, “Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair”. It further states that, “Any person whose right, freedom, interest or legitimate expectation has been adversely affected by administrative conduct has the right to be given promptly and in writing the reasons for the conduct”.

President Mugabe’s act of firing Joice Mujuru is an administrative act. Further, he has purported to give reasons for firing her. The problem is that these reasons are too general, vague and not specific enough for her to defend herself. She has rights that are protected by law, including the right to demand detailed reasons to enable her to construct her defence and the right to a fair hearing in order to defend herself against any allegations thrown at her.

In terms of both s. 68 and s. 69 and also principles of natural justice, Mujuru has every right to contest her dismissal in a court of law. It might be said that her chances are next to nil, given the perceived lack of judicial independence, but that alone is not reason enough to prevent her from defending herself. Section 68(3) states that, “Every person has the right of access to the courts, or to some other tribunal or forum established by law for the resolution of any dispute”. If she wants, Mujuru can challenge her dismissal on the vague ground stated by citing s. 106(2)(b). She has a right to do so.

In that statement, Mugabe is alleging misconduct, which any person, including Mujuru is entitled to contest if she does not agree with it. It means therefore, Mugabe would have to prove the allegations before an impartial forum. He and/or his witness would have to be cross-examined by Mujuru’s legal counsel on the correctness of his allegations.

My view is that President Mugabe has exposed himself or he has been misadvised in a manner that exposes him and his office to contestation of his decision to dismiss Vice President Mujuru. I am shocked that they have purported to act on this obscure ground when in fact he had a simpler and more straightforward facility to dismiss her. I have previously described and analysed this provision and thought it was plain to everyone in Zanu PF. That provision is s. 14(2) of the Sixth Schedule which provides that the Vice President serves at the President’s pleasure and it means exactly that – that the President is at liberty to fire the VP if it so pleases him. There is no obligation to go into detailed reasons or to justify himself and more importantly, it would be much harder for a court of law or any forum to challenge or interfere with executive discretion exercised under such a provision.

This provision was established precisely to make it easier for the President to hire and fire a VP compared to section 97 (which was suspended for a decade) which involves Parliament in the removal procedures.  As I have explained before, while there is a conflict between s. 14(2) and s. 97, s. 14(2) takes precedence because s. 2 of the Sixth Schedule states clearly that in the event of a conflict between a provision of the Sixth Schedule and a provision of the Constitution, the former prevails.

Therefore, President Mugabe could have avoided trouble simply by using s. 14(2) of the Sixth Schedule rather than base his decision to fire Mujuru, as he has done, on the basis of s. 106(2)(b). By doing so he has exposed his decision and himself to contestation and assumed greater obligations that must be fulfilled before he can fire Mujuru – rights to a fair hearing and the right to proper administrative conduct. Mujuru is perfectly entitled to challenge her sacking both on the basis of s. 68 and s. 69 of the Constitution. He could have avoided it by using a provision that allows him greater levels of discretion which is harder to challenge and/or interfere with even if challenged. Now that he has stated his reasons, he can be put to the defence of his reasons.

wamagaisa@yahoo.co.uk