PRESIDENT Robert Mugabe’s allocation of dual roles to Vice-President Emmerson Mnanagwa is a violation of the Constitution, a constitutional lawyer disclosed yesterday, poking holes into legal reasons given for the withdrawal of Information minister Jonathan Moyo from Cabinet last week.
BY XOLISANI NCUBE
Moyo was removed from government last week amid reports that Attorney-General Prince Machaya had advised Mugabe that Moyo had lost his post after he stood in the June 10 Tsholotsho North by-election.
Machaya reportedly said Moyo had to retake a new oath of office if Mugabe still wanted to keep him in Cabinet.
However, constitutional law expert Derek Matyszak said Moyo’s case and Mnangagwa’s dual roles had exposed Mugabe and his advisers’ lack of understanding of the Constitution.
“The man (Mugabe) clearly has no idea what is in the Constitution, and his advisers seem to treat the supreme law of the land as a mere guideline rather than as legally binding,” Matyszak said in a post on the Research Advocacy Unit website.
“In fact, the ongoing Moyo saga highlights a particular violation of the Constitution which also relates to the composition of the Executive.”
He said Section 129 (1)(c) of the Constitution provided that the seat of an MP became vacant upon the legislator becoming President or Vice-President.
- Chamisa under fire over US$120K donation
- Mavhunga puts DeMbare into Chibuku quarterfinals
- Pension funds bet on Cabora Bassa oilfields
- Councils defy govt fire tender directive
Keep Reading
Mnangagwa’s Chirumanzu-Zibagwe seat and that of former Vice-President Joice Mujuru were declared vacant after the Zanu PF congress to comply with the legal provision.
Matyszak said while Section 129 (1)(c) was applied, the effect of Section 108(2) on Mnangagwa appeared not to have been properly considered.
“Section 108(2) provides that a minister vacates his or her office as such upon ceasing to be a Member of Parliament,” he added.
“Mnangagwa vacated his office as Minister of Justice when he ceased to be a Member of Parliament and upon becoming Vice-President.
“However, Mugabe continues to treat Mnangagwa as the Minister of Justice (rather than merely administering various Acts, which is permitted) and he continues to be referred to as such by government and the Press.”
Matyszak said the only way that Mnangagwa could be Vice-President and Justice minister simultaneously, would be if Mugabe appointed him as one of five ministers picked from outside Parliament.
“This, however, would be of dubious constitutionality on two accounts,” he added.
“Firstly, a Vice-President is not allowed to hold any other public office (section 103 of the Constitution) and surely being a minister is another public office.
“Secondly, even if this is not so, when Mnangagwa was appointed, Mugabe had already allocated ministries to the five people he is permitted to appoint from outside Parliament.”
The five are Joseph Made (Agriculture), Lazarus Dokora (Education), Faber Chidarikire (Mashonaland West Provincial Affairs), Martin Dinha (Mashonaland Central Provincial Affairs) and Moyo.
“If Mnangagwa is added to this list, there would have been six, not five, ministers appointed from outside Parliament,” Matyszak argued.
“If Mnangagwa is indeed the Minister of Justice, then the removal of Moyo has restored constitutionality, and there are now only five ministers appointed from outside Parliament.
“Moyo may be reappointed as he is now a Member of Parliament. But any attempt to appoint a replacement for Moyo from outside Parliament, such as Grace Mugabe, would be unconstitutional, and possibly will be interdicted by anyone interested in defending the Constitution.”
He said the only way to avoid violations of the Constitution was to accept that Mnangagwa was not the Justice minister.
“In this way he will not be the holder of two public offices, and the position of one of the five ministers appointed from outside Parliament may be treated as vacant,” the expert added.
He said there was no need for Moyo to be removed from Cabinet the way it was done. There was need for Mnangagwa to step down as Justice minister when he lost his seat as MP.
“However, it is likely that he will continue as Minister of Justice, and Mugabe will unconstitutionally appoint a sixth minister from outside Parliament,” Matyszak said. “Whatever the reason for Moyo’s axeing, I think we can safely rule out one – that Mugabe is a stickler for constitutionality.”
Former Prime Minister Morgan Tsvangirai’s ex-adviser Alex Magaisa agreed with Matyszak’s interpretation of the law on Mnangagwa’s dual roles.
“This is because section 99 of the Constitution on functions of Vice-Presidents provides that the VPs ‘assist the President in the discharge of his or her functions and perform any other functions, including the administration of any ministry, department or Act of Parliament, that the President may assign to them’,” Magaisa said.
“While it is contrary to section 103 which prevents VPs from holding any other public office, it is legal because the Constitution allows it. The only point that might be made is that he should not be referred to as the Minister of Justice, but he can equally be referred as the VP in charge of the Justice ministry and still perform the same job.”
Hence, Magaisa said the oversight showed that Mugabe was not a “stickler to constitutionalism”.
“But technically, if Mugabe was a stickler to constitutionalism, Mnangagwa should have stood down as Minister of Justice, and Mugabe could then have re-assigned him to take charge of the Justice ministry,” he said.
“This would make his decision on Moyo consistent, if indeed it is true that he asked Moyo to stand down on the technicality that he was appointed to his ministry and that this lapsed when he became a constituency MP.”
Both Mugabe and Moyo have remained silent on the political science professor’s position in Cabinet since the alleged fallout became public last Tuesday.
