BSR: Government must avoid legal missteps
Last week, the new leader of Zimbabwe, President Mnangagwa announced his new Cabinet. Members of Cabinet were sworn into office today. There are a lot of reaction to the announcement last week, with many expressing scepticism over the inclusion of lots of faces that have previously served under former President Robert Mugabe’s governments. Among the members of Cabinet are suspected kleptocrats whose appointment seemed to contradict the new mantra of anti-corruption. Others pleaded in defence that the Mnangagwa's team should be judged on performance and therefore, it should be given a chance. However, the Cabinet announcement was also conspicuous by the legal missteps which were easily avoidable. Such missteps do not project the new government in good light.
Excessive non-MPs in Cabinet
The first and most significant one was the appointment of an excessive number of persons who are not members of parliament, which forced the new president into a quick revision and reshuffle. In terms of the section 104 of the constitution, as a general rule members of the Cabinet must be drawn from parliament. The exception is that the President is allowed to make up to 5 appointments from outside parliament. These 5 are to be “chosen for their professional skills and competence”. The rationale for this is that the pool of eligible members of parliament may be short of certain skills and competences that a president needs to run his government. The reasoning is that in order to fill those gaps, the president should be allowed some leeway to choose ministers from outside parliament. These 5 do not become MPs but they can sit and speak in parliament although they won’t have the right to vote. There is, of course, a risk that a president may use this facility to appoint and recuse cronies who might have lost elections.
A little background on this provision is useful for context. During the constitution-making process, the MDC parties had proposed that a president should, without any restrictions, have the power to appoint ministers from both within and outside parliament. In other words, he should not be restricted to the pool of parliamentarians. Under this scheme, all proposed presidential appointees to Cabinet would be vetted and approved by parliament before assuming office. However, this proposition was opposed by ZANU PF. They argued that ministers should only be selected from parliament. In the end, due to the diametrically opposed positions, a compromise was reached where the majority of ministers would come from parliament but the president would have the liberty to select up to 5 from outside parliament. The irony is that this resistance by ZANU PF has restricted President Mnangagwa’s choices when he could have done with more freedom to appoint more fresh faces from outside parliament.
As it happens, in his bid to appoint new faces while rewarding loyalists, President Mnangagwa had a significant legal misstep when he named far more than the 5 ministers he is permitted to appoint from outside parliament. This forced his office to make a swift somersault just 24 hours after the appointment. Lazarus Dokora was a major casualty of the reshuffle, losing the Ministry of Primary and Secondary Education. Petronella Kagonye came in as Minister of Labour, boosting the gender equation which was grossly unbalanced with only 3 women in Cabinet. 3 non-MPs who had been appointed were de-listed as ministers and named as Special Advisers to the President. It is not certain that the renaming affects the substantive nature of their duties. They could be ministers in all but name. If that is the case the re-naming is no more than a technical veil for compliance purposes. Still, there is a view that the number of non-MPs is still far in excess of the limit. This embarrassing episode so soon after assuming the reigns of power could have been avoided.
One way to cure this is to appoint the non-MPs as Senators filling any vacancies that may arise if ZANU PF decides to sack or retire some its serving Senators. Senators are appointed on the basis of proportional representation, so there are no by-elections, which ZEC has now called off until the next election in accordance with section 158 of the Constitution.
Dissolution of Cabinet
The Office of the President and Cabinet (OPC) had already made its first legal misstep when it announced the dissolution of the last Cabinet by the President last Monday. The press statement issued by the Chief Secretary to the OPC stated that the new President had dissolved the old Cabinet. He cited section 108(1)(c.) of the constitution as the basis of that dissolution. This was incorrect. The president could not have dissolved Cabinet because it had already been dissolved by operation of law the moment that he took the oath of office on 24 November 2017. Section 108(1)(c.) states that “The office of a Minister or Deputy Minister becomes vacant … upon the assumption of office by a new President.” This means Cabinet positions automatically became vacant when Mnangagwa became president. Thus the president had no power to dissolve something that had already dissolved automatically by operation of law. The fact that the OPC had to issue a statement proclaiming the exercise of a power that the President did not have demonstrated gross oversight and a misunderstanding of the constitution.
Appointment of serving generals
There is nothing wrong with former military personnel assuming roles in government. It happens even in the best and oldest democracies. However, there are rules which are intended to separate the military from the civilian arms of the state. Thus, one must retire from the military first before assuming civilian duties. This much is evident in section 208(4) of the constitution which states that “Serving members of the security services must not be employed or engaged in civilian institutions except in periods of public emergency.” No public emergency has been declared in Zimbabwe. To prevent a legal misstep, the appointment of Air Marshall Perrance Shiri and Major General Sibusisiwe Moyo, both serving generals, as Cabinet Ministers should only have been done after their retirement from office in the security structures.
It is difficult to understand the occurrence of these basic errors and legal missteps which are easily avoidable. The Attorney General is the principal legal adviser to the government and is responsible for advising the OPC in such matters. Such basic errors do not show the new President and his government in good light. While still at it, there is one more point, which could qualify into a significant legal misstep if it is not attended to. This is the issue of the appointment of the Vice President/s.
Appointing the Vice President/s
The appointment of the Vice President/s is provided for in section 14 of Schedule 6 to the Constitution. Section 14(2) states as follows:
“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.”
Although President Mnangagwa was not elected, this provision applies to him since his nomination by the ruling party resulted in him assuming the office of President. In any event, authority to make such appointments can be found in section 342(3) which provides that “A power, jurisdiction or right conferred by this Constitution may be exercised, and a duty imposed by this Constitution must be performed, whenever it is appropriate to do so.” It is arguable that the exercise of the power to appoint a Vice President is appropriate in these circumstances. President Mnangagwa therefore has both a right and obligation to appoint a Vice President/s.
In this regard, the key words are that this appointment must be done “without delay”. Although this phrase is not defined, at law, it means the appointment must be done within a reasonable time. The new President took office on 24 November 2017 and he appointed his Cabinet nearly a week later. He is yet to appoint his Vice President and it has been suggested that he is waiting for his party’s Extraordinary Congress scheduled for December. It may be argued that the delay is not yet unreasonable. However, the president must be reminded that further delays would not only suggest indecisiveness but it may stretch the boundaries of what is reasonable. A Vice President has an important constitutional role, particularly in the event of absence of a President or in the worst case scenario, where a vacancy arises by reason of death, resignation or removal, as evidenced in the last 3 weeks when former President Mugabe was forced to resign.
No obligation to appoint 2 Vice Presidents
Second, contrary to common belief, it is important to emphasise that the president is NOT obliged to appoint two Vice Presidents. The provision refers to the appointment of “not more than two Vice Presidents” which means he two is the maximum but it is not necessarily the minimum. This is why former President Mugabe appointed Joice Mujuru as the sole Vice President between August 2013 and December 2014 when she was sacked. The new president should follow suit and avoid the monstrosity of two deputies.
Since the appointment of old faces in Cabinet has been justified on the basis of cost-effectiveness, it actually makes more economic sense for Mnangagwa to name just one Vice President. The idea of having two vice presidents in a country of 14 million people has generally been about political expediency in the wake of the 1987 Unity Accord between ZANU PF and PF ZAPU but it is an expensive luxury that a poor country can ill-afford. Since he has leeway to appoint just 1 Vice President, Mnangagwa should make use of it. After all, they will only in office for less than 10 months.
The magnitude of the cost becomes more vivid when considered through the lens of pensions for Vice Presidents. According to section 102(3) of the constitution, a former Vice President is entitled to a pension that is equivalent to the salaries and benefits for sitting Vice President. If Mnangagwa appoints two new Vice Presidents between now and the next elections in less than 10 months, that will be an addition of two new potential recipients of salaries and benefits of a Vice President for life. Needless to say, Zimbabwe cannot afford it. This also means whoever he appoints as a Vice President now must be the same person whom he would appoint should he win the next election. Although it makes sense for him to appoint just 1 Vice President between now and the next election, he will probably be swayed by the politics of expediency to appoint 2 given that the election is not far off and he has some balancing act tom perform and keep all constituencies happy.
In conclusion, if the AG’s Office has been involved in these legal missteps, it needs to step up on its advisory role. However, if officials in the OPC are not consulting the AG or have been ignoring advice, they need to review their approach. The president may also consider having a panel of advisers to help navigate the legal labyrinth. This will help avoid unnecessary errors which damage the standing of the highest office in the country. It is unprofessional to commit such basic errors as are on show.
Second, the president must abide by the constitution and appoint a Vice President without further delay or it will count as another legal misstep. If his nomination as President was done with such haste and did not have to wait for the special congress, there is really no justification why a Vice President should be conditional upon the outcome of that congress. The delay is unnecessary.
Finally, rather than appoint two Vice Presidents, President Mnangagwa should consider appointing just one Vice President for the short period between now and the next election in less than 10 months. It makes economic sense but I fear this will give way to political sense.