via Some Constitutional Questions on the Vice Presidency | newzimbabweconstitution 12 December 2014 by Alex T. Magaisa
I must respond to two questions of a legal nature that have been posed by various readers. As it would not make sense to respond to each one separately, I thought I should do a short explanation that would also inform others who may not have considered the matters. I will consider each question in turn.
1. Should Mphoko not be an MP to be appointed as Vice President?
This question arises presumably because Phelekezela Mphoko, the other VP nominee is not at present a Member of Parliament. Those who are asking are doing so presumably because they think one must be an MP to be eligible for appointment as Vice President. This is an erroneous belief. There is no requirement that one must be an MP in order to be a Vice President.
The qualifications of a Vice President are set out in section 91(1) of the Constitution. They are the same as the qualifications for the Presidency. To be eligible, a person must be a Zimbabwean citizen by birth or descent; must be at least forty years of age; must be ordinarily resident in Zimbabwe; and must be a registered voter. Being an MP is not one of the constitutional requirements.
In fact, according to section 129(1)(c.) of the Constitution, if a person is an MP and is then appointed as a Vice President, his or her tenure of office as MP automatically ends. This means, in fact, that once Emmerson Mnangagwa, who is an MP for a National Assembly constituency will cease to be an MP upon his appointment as Vice President. That seat will become vacant and a by-election must be held within 90 days in terms of section 158(3) of the Constitution.
This, therefore, calls for the opposition to be decisive over the issue of elections – whether or not they will participate in future elections. This is an issue which I have been keen to address in these pages but unfortunately it had been overshadowed by the political drama in Zanu PF which could not be avoided. I will take an opportunity to do so in the next few days.
But back to the question: Is Mphoko ineligible for the Vice Presidency because he is not an MP? No. He does not have to be an MP.
2. Can a person who is not an MP be appointed as a Cabinet Minister?
The answer to this is yes, a person who is not an MP can be appointed as a Cabinet Minister. Section 104(3) the Constitution allows the President to appoint up to 5 ministers from outside Parliament. To show how it works, it is in terms of this provision that Jonathan Moyo, who lost his Tsholotsho seat in the 2013 elections, was appointed as Information Minister. He is not an MP, and although he is allowed to sit and speak in Parliament, he has no voting rights in Parliament.
Some will ask why the President has such a power. It is a legitimate question. It was designed to permit the President to appoint persons on the basis of their professional skills, which may be in short supply among MPs. The risk is that it becomes a rescue facility for politicians who would have been rejected by voters and would have lost in elections. It can also become a facility for politics of patronage where cronies are accommodated and rewarded by the President. Nevertheless, the intentions behind the clause are noble and in the right hands the power can be a force for good.
I hope this answers the questions.
wamagaisa@yahoo.co.uk
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