Constitution Watch 2/2015 of 23 January

via Constitution Watch 2/2015 of 23 January – The Zimbabwean 26 January 2015

Two National Assembly By-Elections Following Dismissal of Vice-President Mujuru & Appointment of Vice-Presidents Mnangagwa and Mphoko

Two National Assembly By-Elections Pending

President orders two by-elections

President Mugabe has, by proclamation 1/2013 in terms of section 39 of the Electoral Act, gazetted in Statutory Instrument [SI] 3/2015 on 10th January—

· ordered the holding of by-elections to fill the vacancies in the National Assembly constituency seats for Chirumanzu-Zibagwe [formerly held by Vice-President Mnangagwa] and Mount Darwin West [formerly held by ex-Vice-President Mujuru]

· fixed Thursday 29th January as the date for nomination courts to sit, at the Magistrates Court, Bindura for Mount Darwin West, and Magistrates Court, Gweru for Chirumanzu-Zibagwe

· fixed Friday 27th March as polling day for both by-elections, if polls become necessary [i.e., if either nomination court sitting produces two or more duly nominated candidates].

[SI 3/2015 is available from the addresses given at the end of this bulletin.]

How the vacancies arose

Until 9th December 2014 there was only one Vice-President, Mrs Joice Mujuru. She was appointed sole Vice-President by President Mugabe on 11th September 2013. As is well known, recent extraordinary developments within ZANU-PF culminated in Mrs Mujuru losing her position as Second Secretary of the party at the party’s Congress [3rd to 6th December]. President Mugabe then dismissed her as Vice-President on 9th December 2014. On 12th December he appointed and swore in two new Vice-Presidents, Mr Emerson Mnangagwa and Mr Phelekezela Mphoko; these appointments have been officially notified by the President’s Office in GN 7/2015 [available from the addresses given at the end of this bulletin].

Both Mrs Mujuru and Mr Mnangagwa were constituency members of the National Assembly when appointed Vice-President. Mr Mphoko was not.

Under section 129(1)(c) of the Constitution the seat of a member of Parliament becomes vacant immediately upon that MP becoming a Vice-President. So, as a matter of law, Mrs Mujuru ceased to be an MP and her seat fell vacant in September 2013. Up to December 2014, however, section 129(1)(c) seems to have been overlooked by Parliament and everyone else [including Veritas]. This oversight meant that no action was taken until then to notify, or fill, the vacant Mount Darwin seat. Hansard, for instance, continued to list Mrs Mujuru as MP for Mount Darwin West until the end of November 2014.

Once made aware of the true constitutional position, Parliament acted promptly. On 16th December the Speaker of Parliament, as required by section 39(1) of the Electoral Act, gave written notification to the President that there were two vacancies in the National Assembly—

· the vacancy in the Chirumanzu-Zibagwe seat [Midlands] arising from Mr Mnangagwa’s appointment as a Vice-President

· the vacancy in the Mount Darwin West seat [Mashonaland Central] arising from Mrs Mujuru’s appointment as sole Vice-President in 2013.

The President was then obliged by section 39 of the Electoral Act tois gazette a proclamation ordering by-elections within fourteen days of receiving this notification.

Note: Section 129(1)(c) is new. Under the former Constitution a Vice-President had to be an MP on appointment or become an MP within three months.

ZEC now responsible for conducting the by-elections

The conduct of the by-elections is now the responsibility of the Zimbabwe Electoral Commission [ZEC]. There has as yet been no official reaction to threats by spokespersons for MDC-T and the new UMDC [the Renewal Team and Professor Welshman Ncube’s party] to boycott the by-elections unless meaningful electoral reforms are implemented, both by legal measures and in practice. If the boycott occurs and if ZANU-PF candidates are unopposed come nomination day on Thursday next week, those candidates will be declared elected by the nomination court presiding officer, thereby eliminating the need for voting in March.

ZEC’s voters’ roll problem A major potential difficulty is posed by the present legal and factual position vis-à-vis the voters roll. In spite of the new provisions in the Constitution, ZEC has not yet assumed its new constitutional responsibilities for keeping and maintaining the voters roll and registering voters. ZEC has pointed to both legal difficulties [an unaligned Electoral Act] and lack of capacity/resources as reasons for not having taken over these responsibilities from the Registrar-General. At the same time ZEC does not accept the validity of what the Registrar-General has been doing with the voters roll since the Constitution came into force.

Thus, in September 2014 ZEC rejected Dr Gono’s nomination for a Manicaland party-list vacancy in the Senate on the basis that his registration as a voter in Manicaland had been illegally effected by the Registrar-General in December 2013. Valid and up-to-date voters’ rolls, both print and electronic, are a must if constitutionally acceptable by-elections are to be held. This problem may well become the subject of legal proceedings.

Constitutionality of Mrs Mujuru’s Dismissal

Until 2023 the transitional provisions set out in paragraph 14 of the Sixth Schedule to the Constitution affect Vice-Presidents in two important respects: how a person becomes Vice-President in the first place and a Vice-President’s tenure of office. Any Vice-President [there can be one or two, as the President sees fit] is appointed by the incumbent President and holds office “at the President’s pleasure” [paragraph 14(1)].

This means that the President can remove a Vice-President from office whenever he pleases, as Veritas said in Bill Watch 44/2014 dated 24th November. Where a person holds an office at the President’s pleasure, the President may remove him or her from office at any time without having to justify or explain the dismissal. An office-holder at pleasure accepts the precarious nature of his or her tenure as an inherent risk of the office. And in the normal course of events it is extremely difficult to get a court to overturn a decision to dismiss an office-holder at pleasure.

Nevertheless, there have been suggestions that Mrs Mujuru’s dismissal can be challenged for unconstitutionality, three of which we now discuss.

1. Failure to follow section 97 of the Constitution Reliance has been placed on this section’s provision that a Vice-President may only be removed from office for good cause, and then only after a special procedure involving a Parliamentary investigation and the passing of a joint resolution of both Houses of Parliament, adopted by a two-thirds majority, requesting his or her removal. The simple answer is that section 97 is not presently applicable because until 31st July 2023 it is clearly inconsistent with, and therefore overridden by, paragraph 14(1) of the Sixth Schedule to the Constitution giving the President unfettered power to remove a Vice-President whenever he pleases. The overriding effect of the Sixth Schedule is made clear by paragraph 2 of the Sixth Schedule

“Effect of Sixth Schedule

2. This Schedule prevails, to the extent of any inconsistency, over all other provisions of this Constitution.”

2. Wrong provision cited as authority for the dismissal The official statement issued on 9th December by the Chief Secretary to the President and Cabinet announced that President Mugabe had “in terms of” section 106(2)(b) of the Constitution, “exercised his executive powers” to relieve Vice-President Joice Mujuru of her position as Vice-President. Section 106(2)(b)of the Constitution – the provision cited by the Chief Secretary – does not empower the President to dismiss a Vice-President. It occurs in a provision dealing with how Vice-Presidents, Ministers and Deputy Ministers must conduct themselves, and says they “may not, during their tenure of office … 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”. The power to dismiss presently comes from paragraph 14 of the Sixth Schedule, as already explained.

Is this incorrect citation of any constitutional or legal significance? Probably not. Realistically, it is difficult to see any court deciding that the dismissal was invalid on this ground alone. The reference to section 106 can be read as no more than an explanation for the dismissal.

3. What about the principles of administrative justice? Another contention is that, because the official statement gave the reason for Mrs Mujuru’s dismissal as misconduct [“(her) conduct in the discharge of her duties had become inconsistent with her official responsibilities”], she had the constitutional right to full details of the charges against her and to be heard in her defence before the President decided what action to take. As that does not appear to have happened, the argument goes, Mrs Mujuru has the right, if she so wishes, to take court proceedings alleging procedural unconstitutionality. If the official statement had said nothing about the President’s reasons and had not alleged misconduct, there would have been little basis for a challenge of this nature.

This criticism cannot be dismissed as easily as the criticism based on section 97 of the Constitution discussed above. Section 68 of the Constitution gives every person the right to administrative conduct that is, amongst other things, “both substantively and procedurally fair”. And the definition of “administrative conduct” in section 332 of the Constitution is very wide.

It is, however, fair to point out that the exercise of the essentially political Presidential power to dismiss an individual holding office at his pleasure would traditionally have been regarded as not subject to rights of the sort envisaged by section 97 of the Constitution.

It remains to be seen whether Mrs Mujuru will launch legal proceedings.

Vice-Presidents’ Ministerial Responsibilities

GN 7/2015 announcing the appointment of the two Vice-Presidents states that:

· Mr Mnangagwa has been appointed “Vice-President and Minister of Justice, Legal and Parliamentary Affairs”

· Mr Mphoko has been appointed “Vice-President and Minister of National Healing and Reconciliation”.

Strictly speaking, a Vice-President cannot also be a Minister. Section 106(2)(a) of the Constitution prohibits a Vice-President from holding any other public office. But section 99 of the Constitution permits the President to assign functions to a Vice-President, “including the administration of any Ministry, department or Act of Parliament”. So this somewhat subtle point will probably be of no significance in practice.

Section 37 of the Interpretation Act provides neatly for the situation. It states that where the President has conferred on a Vice-President any functions conferred on a Minister by an Act of Parliament, references to the Minister in that Act must be construed accordingly, as referring to the Vice-President. This will apply for all Acts presently assigned to the Ministry of Justice, Legal and Parliamentary Affairs; its many Acts must be construed as conferring functions on Vice-President Mnangagwa . Until the Government gets round to having a National Peace and Reconciliation Commission Bill passed by Parliament, however, Vice-President Mphoko will have no Acts to administer.