There is confusion on what the “key” positions should be, clearly showing that the negotiators to the GPA overlooked the need to specify which appointments President Robert Mugabe can and cannot make without consulting Prime Minister Morgan Tsvangirai.
The divergence became glaring after Mugabe last week appointed three judges to the High Court and promoted Justice George Chiweshe to Judge President, taking over from Rita Makarau who had been moved to the Supreme Court.
According to the constitution, the president is only required to consult the Judicial Services Commission when appointing judges.
While judges are not government officials since they serve the judicial arm of the state, the MDC-T felt hard-done-by, saying it should have been “consulted”, something which the other two parties said was not necessary. One of the negotiators representing MDC-M, Professor Welshman Ncube, said the appointment of judges was done in accordance with the constitution and that of senior officials as per the GPA.
“The appointment of judges is different,” said Ncube. “They are a different arm of the state. It is not a problem if the president did not consult. Make no mistake about it, it is the minister (Justice minister) who should have advised the president if there was need to consult.”
This was however countered by an MDC official who said their reading of the constitution was that any appointment that was done by the president entailed consulting the premier.
“The president is required to call the PM and then agree that the appointments be made,” said the official. “The constitution spells out that the president consults and to say the appointment of judges is done without following the due process is a piecemeal approach.”
Elton Mangoma, the MDC-T representative during the negotiations, said he was not supposed to comment and asked this reporter to read out the GPA to him before the line was cut. Efforts to re-establish the connection failed as Mangoma did not pick up his phone.
Section 20 sub-section 1.8 of the constitution states that: “The parties agree that with respect to occupants of senior government positions, such as permanent secretaries and ambassadors, the leadership in government, comprising the president, the vice presidents, the prime minister and deputy prime ministers will consult and agree on such prior to their appointments.”
The GPA says: “(The president) in consultation with the prime minister makes key appointments the president is required to make under and in terms of the Constitution or any Act of Parliament.”
Constitutional experts said the appointment of senior officials may not be so much a violation of the constitution as the GPA.
Pinning down the meaning of “consultation” may also be a problem, the experts said, as it may be interpreted differently.
Constitutional lawyer and University of Zimbabwe lecturer, Lovemore Madhuku, said the appointments made by President Mugabe were a clear sign of the weaknesses of both the GPA and the country’s constitution.
“What they (the negotiators to the GPA) did was to give a blanket reference to consultation,” said Madhuku. “What should have happened is that the MDC should have been better advised and what they should have done is to amend every clause (in the constitution) than gave a blanket reference.”
Tinoziva Bere, a lawyer, said the issue of consultation could have been done at two levels.
“The more civilised level would have entailed conversation between the political parties taking place much earlier,” said Bere. “This would include a specific discussion of the names of the people to be appointed before they are appointed and allow objections to be made.”
This has not been done and as Bere put it, there was another avenue that could have been followed.
“On the second level, before an appointment is made, in a restrictive sense, the other party would be told of the names of people to be appointed before appointments are made,” he said.