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Lawyer wades into VPs legality storm

The question is over the legality of the procedure used to swear in the new vice-presidents (VPs) in December last year. The new VPs were sworn in by the President.

Alex T Magaisa

There are two views on this, based on the new Constitution.

The first is that this was illegal, since the new constitution requires that the VPs must be sworn in by the Chief Justice or in his absence, the next most senior judge. This is in accordance with Section 94 which states as follows: “(1) Persons elected as president and vice-presidents assume office when they take, before the Chief Justice or the next most senior judge available, the oaths of president and vice-president respectively in the forms set out in the Third Schedule …”

This provision also sets out the time limits to be observed and these time limits are based on the event of the election of the VPs.

Two issues arise from this clause: First, since it specifically refers to “persons elected as president and vice-presidents”, does it mean, in the case of VPs, that its application is confined to those that are elected, as opposed to where they are appointed?

An ordinary meaning of that clause would suggest that it only applies where the VPs are elected. There would have been no reason to refer to them as “elected” if that was not important.

The implication of all this is that where VPs are appointed, this provision would not apply. In other words, it would not be necessary to follow that procedure whereby the swearing in is done before the Chief Justice.

This is not to say it would not be desirable. It would be desirable to follow that procedure where VPs are appointed, but it would not be unlawful not to follow it.

The second issue, quite apart from whether or not the VPs are elected, is the issue of replacing VPs, where the incumbents would have been removed or lost office.

The constitution envisages situations where a VP may have to be replaced. Section 97 provides for the removal of a VP from office.

Further, Section 101 deals with how a resulting vacancy in the vice-presidency is filled. The effect of Section 101 is that when a vacancy arises and the first VP is elevated to the presidency, a new second VP would have to be appointed.

However, there is no specific provision in the constitution providing for how such an appointed VP is to be sworn into office. In other words, while Section 94 deals with the swearing in of “elected” VPs, which must be administered by the Chief Justice, there is no equivalent provision which deals with the swearing in of an “appointed” VP, where that VP is replacing an elected VP in terms of Section 101(1)(c) or Section 101(2)(b).

If we use the literal interpretation of Section 94, which refers to the process of swearing in “elected VPs”, we are left with an absurd situation in the case of an “appointed” VP, where there is no procedure for swearing him or her into office.

One way to deal with this would be to read Section 94 more liberally and generously and disregard the “elected” part so that even where VPs have been appointed, it will still apply and the swearing-in process must be done by the Chief Justice.

This is all very important, notwithstanding the fact that the provisions that I have used here to make this argument (Section 101) is currently not in operation. It is important because in terms of Section 14(2) of the Sixth Schedule of the constitution, VPs are appointed by the president. The same question therefore arises.

Who is responsible for swearing in these VPs? Is it the Chief Justice, in terms of Section 94 or can the president do it, as President Robert Mugabe did on December 9 when he swore in VPs Emmerson Mnangagwa and Phelekezela Mphoko and on September 11 2013 when he swore in former VP Joice Mujuru?

I have already pointed out that a literal reading of Section 94 would mean that the VPs could not have been sworn in by the Chief Justice because they were not “elected” VPs as provided for in that section. I have also ventured to suggest that this literalist reading might lead to an absurdity since it would mean that a VP who is appointed to replace an elected VP under Section 101, if it were in application, could not be sworn in at all in terms of Section 94.

I would think, therefore, that such an appointed VP could still be lawfully sworn in by the Chief Justice in terms of Section 94. But would it be fatal if instead, the president administered the swearing-in process, as Mugabe did? My view on this is that it would not be fatal.

But on what basis would he have administered the swearing-in of the VPs, if not under Section 94? The relevant provision is the little-used, but quite powerful Section 342 of the constitution. This provision relates to the exercise of powers conferred under the constitution. It states, in the relevant part (Section 342(3)) that: “Where a power, jurisdiction or right is conferred by this constitution, any other powers or rights that are reasonably necessary or incidental to its exercise are impliedly conferred as well.”

This means that if a public authority has been given power under the constitution, it will be entitled to exercise any other powers or rights that reasonably follow from its exercise. To give a simple example, if you have the power to make an appointment, then surely, you have the power to call for applications and to conduct interviews in order to make the appointment. These powers are reasonably necessary for you to exercise the power of making an appointment.

There has to be the primary power and then there are other things that you can do in order to or as part of exercising that power.

In this case, the president is given the power to appoint VPs under Section 14(2) of the Sixth Schedule of the constitution. But there is no specific provision on how such appointed VPs are to be sworn in (if it is accepted that Section 94 applies only to elected VPs).

Yet, the swearing-in of the VPs must be done for it is a reasonably necessary process and power to be exercised. It can also be argued that the swearing-in of an appointed VP is incidental to the power of appointment. For that reason, the president may therefore swear in the VP using the broad powers under Section 342(3).

This might be regarded as undesirable, but it is one way of resolving the conundrum caused by the omissions in the constitution which does not specifically provide for how appointed VPs must be sworn into office. Under this argument, it cannot be said that the president acted illegally in swearing in the VPs.

The conclusion is that in the absence of clarity in the constitution as to how appointed VPs are sworn in, there are two equally plausible ways of looking at it and using either way would still fall within the bounds of constitutionality. — wamagaisa@yahoo.co.uk

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