THE appointment of 10 additional ministers by President Robert Mugabe after consulting Prime Minister Morgan Tsvangirai and Deputy Prime Minister Arthur Mutambara violated the Global Political Agreement (GPA) and was unconstitutional, lawyers said this week.
They said if the appointments were to stand, there was need for another constitutional amendment or the re-enactment of Constitutional Amendment No19 to accommodate the ministers.
Mugabe has appointed 41 ministers and 20 deputy ministers from the three parties in the transitional authority in what constitutional lawyers said was a violation of the GPA and the constitution.
Under the GPA, signed last September and Constitutional Amendment No19, signed into law by Mugabe last month, the inclusive government should have 31 ministers, 15 nominated by Zanu PF, 13 by MDC-T and three by MDC.
The constitution also states that there should have been 15 deputy ministers with eight nominated by Zanu PF, six by MDC-T and one by MDC.
The bloated cabinet announced by Mugabe, according to analysts, would burden the countryâ€™s flagging economy. Â
â€œAs both the GPA and the constitution say there shall be 31 ministers, it is implicit that there must not be more than 31 ministers in cabinet,â€ a group of lawyers calling themselves Veritas said. â€œAs 41 have been appointed, this makes 10 appointees unconstitutional, although which 10 may be difficult to ascertain.â€
The lawyers said the move by Mugabe, Tsvangirai and Mutambara to flout the constitutional provision after agreeing to increase the size of cabinet to accommodate party interests was against established tenets of constitutional democracy.
â€œThis lays the actions of the inflated government open to challenge in the High Court or Supreme Court,â€ Veritas said.
National Constitutional Assembly chairperson and constitutional expert Lovemore Madhuku said the appointment of extra ministers was illegal and could be challenged in the courts.
â€œLegally they have to introduce Constitutional Amendment Number 20 to give legal effect to the appointments, or Constitutional Amendment Number 19 could be re-enacted in parliament to cover the new appointments,â€ Madhuku said.
He said the ministerial appointments could be nullified if citizens or any organisation challenged them in court.
â€œThe appointments can be successfully contested in a court of law and they can be nullified since they are unconstitutional,â€ Madhuku said. â€œMugabe and the other principals made the appointments hoping that no one will challenge the appointments. They are illegal.â€
Another legal expert with a non-governmental organisation who requested anonymity said civil society organisations should challenge the unconstitutional appointments.
â€œThe civil society in this country is letting people down,â€ he said. â€œThere is no basis for everyone in the civil society to look the other way when politicians are violating the same constitution that they are supposed to uphold.â€
He said it was highly likely that Zanu PF and the two MDC formations would re-enact Constitutional Number 19 as the process of bringing in a new amendment was cumbersome.
Efforts to get a comment from Constitutional and Parliamentary Affairs minister Eric Matinenga were in vain yesterday.
The inflated cabinet was appointed at a time when the country is beset by numerous problems, including collapsed health and educational sectors and a cholera epidemic that has left over 4 000 people dead and 80 000 infected by the waterborne disease since its outbreak last August.
Official vehicles, residences, staff and offices as well as the huge wage bill to accommodate this arrangement would gobble up a large chunk of scarce foreign currency that could go a long way in addressing some of the problems afflicting the country, critics say.
According to political analysts, the bloated government was a damning indictment of the MDC-T formation which based its 2008 election campaign on the promise of a trimmed cabinet.
The big government, the analysts added, would make it difficult for the government to get crucial international funding needed to kickstart the economy.
Finance minister Tendai Biti will have to revise the budget to accommodate the swollen cabinet.
Sources at parliament told the Zimbabwe Independent yesterday that because of the increase in the number of ministers, there were no seats for them in the House.
So large is the new cabinet that observers noted that if it was in 1980 when parliament had 80 elected MPs, almost everyone would have been a minister.
The observers said before last yearâ€™s expansion of the members of the House of Assembly from 150 to 210, close to half of the last parliamentâ€™s lawmakers would have made it into the inclusive governmentâ€™s cabinet. Â
Meanwhile, sources said one of the ministers appointed by Mugabe from the MDC, Gibson Sibanda, would have to find a constituency in the next three months if he is to remain in the cabinet.
Sibanda was appointed a Minister of State in Mutambaraâ€™s office.
In terms of the constitution, a minister should have a seat or should be a non-constituency senator.
The sources said Mutambara had already appointed Welshman Ncube and Priscilla Misihairabwi-Mushonga as his two non-constituency senators ahead of Sibanda.
â€œSibanda has three months to find a constituency either in the House of Assembly or Senate,â€ one of the sources said. â€œIf he fails to get a constituency, he will be forced to step down.â€
BY LOUGHTY DUBE