Mnangagwa, Mphoko legality queried

CONTROVERSY surrounds the legal status of Vice-Presidents Emmerson Mnangagwa and Phelekezela Mphoko after it emerged this week that Chief Justice Godfrey Chidyausiku was prepared to preside over their swearing-in ceremony in December last year in line with what he believes is his constitutional duty.

Owen Gagare

This comes as it also surfaced that senior government and Zanu PF officials approached Mnangagwa, also Justice minister and a lawyer by training, after he was sworn-in alerting him to the potential illegality.

Government officials say Chidyausiku was shocked that Mugabe swore-in the VPs at State House on December 12, shortly after firing former vice-president Joice Mujuru and several ministers aligned to her faction in the ruling Zanu PF party following a hotly-contested succession battle leading to its controversial congress in December.

Officials told the Zimbabwe Independent this week Chidyausiku delayed or cancelled a business trip to India at the material time to preside over the swearing-in ceremony believing that in terms of the law it was his constitutional duty to do so, as mandated by Section 94 of the constitution.

Section 94 states: “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…”
Some senior government officials who attended the swearing-in ceremony were uncomfortable as they were also convinced Chidyausiku should have overseen the ceremony and pointed it out to Mnangagwa later, hoping the anomaly would be corrected in due course.

The controversial issue continues to generate debate in political and legal circles, with some insisting the two VPs are illegally in office by virtue of they were sworn-in.

Some lawyers, however, argue that the constitution is vague in that grey area concerning the swearing-in of the VPs. They say Section 94 of the constitution only deals with “elected” VPs whereas Mnangagwa and Mphoko were appointed, not elected after Zanu PF amended its constitution to give the party leader wide and discretionary powers to appoint all senior officials.

Despite that Chidyausiku seems to have been convinced it was his deputy to swear-in the VPs, Law lecturer at the University of Zimbabwe Professor Lovemore Madhuku said Mugabe was within his rights as “the section applies to those elected and not those appointed by the president”.

“I think the clause is not yet in force,” he said.

Section 92 (2) of the constitution, which deals with the election of the president and VPs, reads:

“Every candidate for election as president must nominate two persons to stand for election jointly with him or her as vice-presidents, and must designate one of those persons as his or her candidate for first vice-president and the other as his or her candidate for second vice-president.”

The clause was, however, parked for 10 years in the sixth schedule of the new constitution and would only come into effect in 2023. The sixth schedule also empowers the president to appoint deputies but does not state the person who should swear them into office.

UK-based law lecturer at the University of Kent, Dr Alex Magaisa says given that the constitution is unclear on how appointed VPs are sworn-in, it would still fall “within the bounds of constitutionality” if either the Chief Justice or the President presided over the ceremony.

“The first is that this was illegal, since the new constitution requires that the Vice- Presidents must be sworn in by the Chief Justice or in his absence, the next most senior judge. This is in accordance with Section 94,” he said.

Magaisa, however, said an ordinary meaning of that clause would suggest that it only applies where the Vice-Presidents 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 Vice-Presidents are appointed, this provision would not apply,” he said.

It would be “desirable” for the VPs to be sworn-in by the Chief Justice but it would not be unlawful not to do so, he added.

Magaisa noted that Section 97 of the constitution provides for the removal of a Vice-President, while Section 101 deals with how a vacancy in the Vice-Presidency is filled. Section 101 stipulates 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 Vice-President is to be sworn into office. In other words, while section 94 deals with the swearing-in of ‘elected’ Vice-Presidents which must be administered by the Chief Justice, there is no equivalent provision which deals with the swearing-in of an ‘appointed’ Vice-President, where that Vice-President is replacing an elected Vice-President in terms of section 101(1)(c) or section 101(2)(b),” noted Magaisa.

He said Mugabe could have presided over the swearing-in ceremony on the basis of 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 to do something that authority would be entitled to exercise any other powers or rights that reasonably flow from its exercise.

9 thoughts on “Mnangagwa, Mphoko legality queried”

  1. Tozvireva says:

    Zim Ind editor please get a copy of the constitution and force your journalists to read it…..We are tired of stories that are written by ignorant journalists…..Was Mai Mujuru sworn in by Chidyausiku???? Do we have elected VP’s???? So how does section 94 apply when the constitution deferred election of VP’s for 10 years,???

    1. adm says:

      Well Tozvireva you are very diplomatic. Actually the editor himself should read the constitution. He gets too excited over nothing all the time.

  2. cash talk says:

    Zimbabweans the world over had been known to be smart and educated. However the level of journalists in very reputable newspapers now seem to be questionable. Its not that if you argue and or make sense on anything then its newsworthy. What we are getting are now reports akin to arguments over whether one is a girl or a boy based on what they were wearing and appearance without anyone actually asking and or looking at their birth certificates and or asking them and their parents! Here is a national newspaper engaging in a national argument over hearsay that Chidyausiku cancelled his trip to India on a day when his boss was being sworn in as VP. And your only assumption was that he cancelled because he must have thought he was presiding over the ceremony! Since your artuicle is heavily premised on Chidyausiku’s actions: Has the newpaper/reporter verified (i) that Chidyausiku was in fact scheduled to go to India, (ii) that he cancelled and (iii) that he cancelled based on the fact that he thought he was the one supposed to preside over the ceremony?

    This would be ok if it was an English paper where you come up with your own topic, then assume your own premises even if they are based on pseudo truths and then make a conclusion and then the paper is graded on structure ONLY! This is now reality and a simple fact check and understanding of the ACTUAL constitution should be the bare minimum expected before publishing such a story! Yes Kwaedza and publoids can publish such, but you are a news outlet expected of higher standards than that!

  3. Rob says:

    It is a pity when journalists become so lazy as not to read the constitution and continue to write fictitious legal stories. That provision is not yet into force, it only becomes effective in 2023.

  4. TruthBTold says:

    The plain simple fact is that the whole of the ZPF government is illegitimate and has been since 2002. God has and will continue to expose. This has been aided and abetted by a useless and corrupt AU and SADC and SA govt. In the Lord’s eyes there is a HUGE legitimacy issue. He hates lawlessness, deception, theft and uneven scales. We demand free and fresh elections now! And the whole of the electoral system needs to be run by non political persons. Anything political is NOT to be trusted. God is watching.

    1. adm says:

      TruthB Told, so everybody else is corrupt except you unless they oppose ZANU Pf even for nothing and even if they have no mandate to do so? Please respect God. If he did not want Mugabe on the throne he would have removed him. Be careful the way you abuse the name of God.

  5. jusy says:

    Dai mwari vakubatsira, the so called ‘ movement for democratic change’ is also on record for election rigging and other under hand dealing and ‘Own’ constitutional manipulation to make sure the chosen ones rises to positions of influence and the cursed like Chamisa just find themselves ordinary card carrying members, especially when they demonstrate that they have the aptitude, attitude and the fibre to becounted among men. Thank God Chamisa had taken a fall back position and studed as a lawyer different from chematatama who is now a destitute

  6. SFI says:

    Tax clearance certificates, vat registration, tax consultancy, fresh company registration(plus tax clearance certificate), cr14, annual returns, vendor number registration, deed of trust registration, state procurement board registration, all your company secretarial work, corporate wear-quality t-shirts. 077 2 560 195

  7. E Makhate says:

    Nothing is legal that is done by Nkabe and his comrades. They grabbed the farms, grabbed other people’s wives, rigged the elections, etc etc etc. I can go on and on about the crookedness of these rogues.

Comments are closed.