HomeOpinionMnangagwa must put on legal thinking cap

Mnangagwa must put on legal thinking cap

SINCE President Emmerson Mnangagwa came into power through a military-driven process after the army forced out disgraced authoritarian ruler Robert Mugabe at gunpoint (yes it was and Muckraker partly has no problem with that if for a moment we refer to the Bible, Matthew, Chapter 26, verse 52 which says those who live by the sword die by the sword; but, of course, from a democratic perspective it is problematic), this pot stirrer has been careful not to rain on the new president’s parade. It is not good to prevent someone from enjoying their moment of glory; spoil other people’s parties no matter how they were done.

However, being the public watchdog Muckraker has been keeping an eagle’s eye on Mnangagwa’s moves. We cannot forget that he was Mugabe’s enforcer, hence the need to monitor his moves and actions closely to see if he is willing to make a clean break with the past. Just like most members of the public, we are giving him the benefit of the doubt, but he must not squander the opportunity by learning and forgetting nothing from history.

Mnangagwa is a lawyer by training and that is good to have someone with that sort of knowledge and sophistication at the helm of the country.

Lawyers have existed since time immemorial, helping to develop constitutions and laws in an attempt to maintain peace and order in societies and communities. They have been useful in advancing human civilisation and development, ensuring constitutionalism, justice and the rule of law are always observed.

Hence, lawyers have profound analytical skills: A great lawyer must be analytical and logical, thus able to readily make sense of a large volume of information. They have or rather should have some rational thinking capacity; discerning minds; research skills; creativity; good interpersonal relations; perseverance, scholastic habits and good communication, reading and writing skills, among other things. That is what a good lawyer must have. Only poor or mediocre lawyers lack of these qualities.

While Mnangagwa may not be Eddison Zvobgo (he was brilliant) in terms of legal brain and thinking, he has demonstrated he is also a thinker in a way; well sometimes. That is why Muckraker is rather bothered and cannot understand why he is perpetrating so many illegalities in office over such a short period he has been president. Is it because of oversight, lack of attention to detail or impunity?

This government, which has a number of lawyers in its ranks, has been allowing unconstitutional and illegal things to happen under Mnangagwa’s watch. These things may appear small at the beginning, but that is what eventually destroys the credibility of leaders and their governments.

Last week, for instance, Mnangagwa appointed a new cabinet full of deadwood — old wine in new bottles. The new ministers were sworn into office on Monday. Apart from the ministers being mostly lacklustre and hopeless, there was a problem of legality involved. Mnangagwa committed a schoolboy blunder by appointing more than five unelected ministers, which forced him into a quick retreat and reshuffle of his shoddy cabinet.

The president was sloppy. In terms of the Section 104 of the constitution, members of the cabinet must be drawn from parliament. However, he is only allowed to appoint up to five ministers from outside parliament “chosen for their professional skills and competence”. This is meant to accommodate technocrats and improve the quality of ministers in relation to skills and competency.

Obviously, there is always, of course, a major risk that a president may use this latitude to appoint his or her friends, relatives or cronies who might have not contested elections, lost or feared the polls.

In a bid to appoint new faces into cabinet while rewarding factional loyalists and army commanders who helped him in, Mnangagwa made a serious blunder in the process by appointing more than the five ministers outside parliament as stipulated in the constitution and law.

This forced him to make a swift volte-face within 24 hours. Something had to be done; even an embarrassing intervention was ok. So Lazarus Dokora became the major casualty of the reshuffle, losing the Ministry of Primary and Secondary Education. Chris Mutsvangwa and Professor Clever Nyathi were also affected.

Petronella Kagonye came in as Minister of Labour, boosting the gender equation which was grossly unbalanced with only three women in cabinet. So three non-MP ministers who had been appointed were removed and accommodated as special advisers to the president.

Some said the somersault showed Mnangagwa listened to the people on Dokora and other such useless ministers, but the truth is that the move was designed to correct a serious and embarrassing constitutional howler the president had committed. It had nothing to do with listening to the people as some ignoramuses and bootlickers would have us believe.

More gaffes
By the time Mnangagwa blundered on the cabinet appointment; his office had already made yet another legal blooper when it announced the dissolution of the previous Mugabe cabinet on last Monday. In that bungle, the president’s office had cited section 108(1)(c.) of the constitution as the basis of that action.

As legal guru Alex Magaisa said, the move was wrong. The president could not have dissolved cabinet because it had already been dissolved anyway by operation of law the moment that he took the oath of office on November 24 2017.

Section 108(1)(c.) states that “the office of a Minister or Deputy Minister becomes vacant … upon the assumption of office by a new president”. So this means cabinet stood automatically dissolved when Mnangagwa became president and as such he could not dissolve a cabinet which no longer existed at law. The question is: Was this an honest mistake, negligence or ignorance? Well, or all of these combined? The same applies to the appointment of serving generals in cabinet. As Magaisa said, there is nothing wrong with former military personnel being appointed into civilian roles in government or even the private sector. It happens everywhere in the world.

However, there are rules to be followed. Thus, one must retire from the military first before assuming civilian duties. This much is evident in section 208(4) of the constitution which states that “serving members of the security services must not be employed or engaged in civilian institutions except in periods of public emergency”, Magaisa observes.

No public emergency has been declared in Zimbabwe. To prevent a legal mess, the appointment of Air Marshall Perrance Shiri and army Major-General Sibusiso Moyo, both serving generals, as cabinet ministers should only have been done after their retirement from office in the security structures. Surely, this must be obvious. You do not need to be a lawyer to understand this.

Further, the appointment of the vice-presidents, provided for in Section 14 of Schedule 6 to the constitution, must be done “without delay”. Mnangagwa has so far failed to do so. This is yet another violation of the constitution and the law. Yet the biggest violation of the constitution by Mnangagwa and his government so far has been how he came in. This is a big issue. In any reasonably democratic, civilised and progressive nation, Mnangagwa’s ascendancy would have been successfully challenged in court.

Muckraker is not talking about the military coup here. That is obviously an easy one. A coup can never be a democratic way of gaining power, in Zimbabwe or anywhere else in the civilised world. People only accepted and tolerated it because they wanted Mugabe to go at all costs.

The real problem is how Mnangagwa came in after the coup. He did not follow the constitution, both the national and Zanu PF constitutions. This is common cause, but very problematic and even dangerous. That is why elections are needed to correct these grave aberrations.

See no evil, hear no evil, speak no evil
Special advisor to President Emmerson Mnangagwa Chris Mutsvangwa is unsurprisingly miffed at the justified criticism of both his boss’ choice of cabinet and the blunders made in doing so.

Hence, his retort: “Leave our president alone. Give him a chance. He means well for Zimbabwe and the people of Zimbabwe are solidly behind him. Please, do not try him before he has even started. Don’t condemn him before he has even started.”

Mutsvangwa was speaking during an address at a Mashonaland West provincial coordinating committee meeting at the weekend.
“I am saying this because all the papers have started attacking the new president. He is being judged in 37 hours more than someone who has been in power for 37 years (Mugabe).”

Well, it is true Mnangagwa needs to be given a chance and time, but he cannot be left alone when he makes such schoolboy blunders.

Unless Mutsvangwa now wants us to go back to the Mugabe era only a few weeks after the dictator was removed.
The truth is the media has been lenient with Mnangagwa; Mutsvangwa knows or should know that. There are too many things which he is being allowed to get away with because we all want change and progress.

Even statements like claiming that “the voice of the people is the voice of God” are crass and very dangerous in a democracy.
However, for now we will not go into critical detail about that to give him a chance to take Zimbabwe forward. But we will remain vigilant as the public watchdogs.

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