President Emmerson Mnangagwa’s decision to assign his
deputy Constanino Chiwenga the Defence portfolio has been described as a
violation of the Constitution, which prohibits a vice-president from holding
any other public office.
Mnangagwa last week appointed Chiwenga, the former Zimbabwe
Defence Forces commander and Kembo Mohadi as the new vice presidents.
He went on to assign Chiwenga the Defence and War Veterans
portfolio previously given to Mohadi while the Zipra veteran was assigned the
national healing and reconciliation department.
Former prime minister Morgan Tsvangirai’s advisor Alex
Magaisa said Mnangagwa had entangled himself in another potential legal mess
after he was forced to change his initial Cabinet, which violated the
Constitution.
“While he is entitled to assign the administration of a
ministry to his vice-president, section 215 of the Constitution specifically
compels him to ‘appoint a minister to be responsible for the defence forces,’”
Magaisa wrote on his popular blog yesterday.
“The problem is that a vice-president cannot, at the same
time, be appointed as a minister as that would violate section 103, which
prohibits a vice-president from holding any other public office.”
He said Section 215 of the Constitution was specific that
the president “must appoint” a Defence minister.
“It is not, therefore, enough for President Mnangagwa to
assign Vice-President Chiwenga the role of administering the ministry of
Defence because that does not constitute an appointment as required under
section 215,” Magaisa wrote.
“This means legally, there is currently no minister of
Defence as required under section 215 of the Constitution, which is a
constitutional violation.
“To cure this, the president must appoint a separate
minister of Defence.
“Since section 225 makes the same requirement in respect of
the intelligence services, the same minister would be responsible for Defence
and security.
“He could, if he so wishes, assign Vice-President Chiwenga
to supervise and oversee that ministry.
“If this is not corrected, civil society, the opposition or
individuals can challenge the president and government through the courts in
order to correct this legal misstep.”
He added: “In this regard, it is important to understand
that unlike other ministers, the position of minister of Defence is
constitutionally defined and has a specific mandate.”
Harare-based constitutional lawyer Chris Mhike said
although section 99 of the Constitution permits the president to assign
ministerial duties to his deputies, the Defence ministry was an exception.
He said Mnangagwa’s decision to move the civil service to
his office was also a violation of the Constitution.
“The consignment of the civil service to the Office of the
President and Cabinet (OPC), and the assignment of ministry of Defence
stewardship to VP Chiwenga are both highly controversial, and could reasonably
be legally challenged,” he said.
“Section 201 of the Constitution of Zimbabwe makes it
peremptory for the president to appoint a minister who should be responsible
for the civil service.”
“Neither the president nor the OPC could be deemed to be “a
minister.”
He added: “Similarly, section 215 of the Constitution
absolutely requires the president to appoint a minister, not a VP, to be
responsible for the defence forces.
“There are many ministries, departments and portfolios that
are not specifically mentioned in the Constitution, for example the national
peace and reconciliation Portfolio, the ICTs and Cyber Security ministry or the
Governmental Scholarships portfolio.
“The OPC and the VPs could be responsible for those without
any dispute; but the civil service ministry and Defence ministry are certainly
problematic as they are particularly mentioned in sections 201 and 215 of the
Constitution.
“If the president, the OPC and the VPs cannot be ministers
(as was suggested by the Constitutional Court in the 2015 NCA case), then the
assignment of the duties and statutes under review could well be a violation of
the Constitution.”
However, constitutional law expert Lovemore Madhuku
differed with the two lawyers, saying according to section 99 of the
Constitution, it was lawful for Chiwenga to administer the Defence portfolio
even if it was “politically unwise”.
“The law says the vice-president can be assigned the
administration of any ministry, department or an Act of Parliament,” he said.
“So there is nothing unlawful with regards to that. But it
is politically unwise.”
But Madhuku agreed Mnangagwa had blundered by transferring
the Civil Service Commission to his office.
“The law is very clear; the president must appoint a
minister responsible for the civil service,” he said.
“The word ‘must’ is not optional, but instructive at law.
So this transfer is illegal.
“It is a continuation of the illegalities we are seeing in
this administration being perpetrated by so-called lawyers.
“At first they appoint nine non-constituency ministers,
more than those stipulated by law. They had to reverse that after being
exposed.
“Here again they have moved the civil service to the Office
of the President and Cabinet when the law is clear that there must be a
minister responsible for that.
“It shows that when it comes to constitutionalism, nothing
has changed, in fact it is now worse.”
Trade unionist Raymond Majongwe said the decision to remove
the civil service from the Labour ministry was a violation of the International
Labour Organisation convention on the harmonisation of labour laws for the both
state and private sector workers. Standard
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