BY SHARON HOFISI
- CONSTITUTIONS are public documents which can have transitional and substantive provisions. When interpreters choose to simply read the constitutional provisions, they normally adopt a literal or ordinary approach.
For instance, one would simply argue that when a vice-president resigns, the President must make a public announcement to this effect. This is because the vice-president is a public servant. This simple view is overly simplistic, although it gives the generality of the populace an answer to the simple question: Why is former vice-president Kembo Mohadi no longer part of the national presidium? The answer would be that he resigned. And what should then happen? The President should make an announcement within the time frame contemplated by the constitution as a public document. This is a shotgun approach.
The other approach is to read into the provisions of the constitution. Admittedly, the constitution is a public document but should not be read in simplistic terms. While the generality of the population may, say, just read the constitutional provisions, it should be accepted that the constitution has smoking gun provisions, including the Sixth Schedule.
This is what Lovemore Madhuku pointed to when he referred to an inner legal eye, which generated some furore, with some wrongly describing his interpretation and that of those adopting simplistic views to Hart-Fuller debate. Reading into the provisions of the constitution is an approach that ensures that the constitutional provisions are not read in a piecemeal fashion. The constitution will also be treated as an extraordinary law.
Section 92, for instance, underscores direct democracy when the President and his running mates are appointed by joint registered voters. In contradiction, the Sixth Schedule helps in showing whether it is the people or the President who deals with the fate of vice-presidents, who are political appointees.
When a state vice-president is dismissed, the right to administrative justice and fair hearing must be observed. This flows from entrenchment theory which makes such rights justiciable. This position is now trite following the case that involved the current President when he was dismissed by the late former president Robert Mugabe.
While reading the constitutional provisions is easy for my mother in the village to comprehend, it appears non-constitutional for want of compliance with other constitutional provisions. We agreed as a polity that our constitution must be interpreted holistically, including looking at other provisions that impliedly or expressly speak to political appointees.
Currently, the resignation of Mohadi has been sort of a parlour game. Any form of interpretation proffered by either those who preferred a reading of the constitution or those inclined to reading into the Constitution seems a no and no again affair. The reading approach says the President failed to publicly announce the resignation as stated in the constitution and he should be censured for it.
The reading into the constitution approach seems to be the one that says the former vice-president was dealt with by the President in terms of the Sixth Schedule. End of story. The subtext of the latter approach is plain; this is no issue for the general populace to question as they created an Orwellian president, someone more equal to the people in certain matters of statecraft, albeit directly mandated by them.
This approach appreciates the fact that the people of Zimbabwe are sovereign but the President is constitutionally established with enormous powers. The Sixth Schedule is thus not used to circumvent the people’s power. It is meant to resolve the problem of any power vacuum left when vice-presidents leave office in ways like Mohadi did.
A president can make a public announcement as was in the Mugabe and former Chief Justice Anthony Gubbay case — a contested affair. It is time Zimbabwean lawyers and non-lawyers accept that our constitution has very bad provisions, especially when relating to those who serve publicly at the mercy of the President or are political appointees, such as the current vice-presidents and the Attorney-General.
One must, of course, appreciate that the President is not just head of government, but also head of the state who should emboss constitutional democracy we cherish as Zimbabweans. But the President can ask us: well, do you want to pry into matters you allowed me to exclusively deal with, and are steeped in the Sixth Schedule?
Whether for good reasons or bad, the resignation of Mohadi had a genuine impact on the proper interpretation of the constitution. This matters. A highly important strand of the debates doing the rounds is that the President should be impeached. Let us, with a bit of Greek or Roman touch here, not worry more about the geography of power than about the geography of our constitution.
The Sixth Schedule shows that the President is not constitutionally obliged to make an announcement or appointment of a vice-president, who is not elected as his or her running mate. Mohadi resigned for reasons that are now public knowledge. When he was still serving as vice-president and when tendering his resignation letter, he did not allege any constructive dismissal on the part of the President of Zimbabwe as the appointing authority. Legally therefore, the results of the resignation follow the cause, that is, his resignation from government largely remains voluntary, basing on what is before us as public information, never mind who relayed it as such.
The tendering of the resignation letter by the vice-president who served at the mercy of the President as contemplated by the Sixth Schedule helped President Emmerson Mnangagwa to seal the act of voluntary termination of Mohadi’s vice-presidency by simply accepting the resignation letter. So what does this mean, constitutionally? Even if Mnangagwa had refused to accept the resignation, former vice-president Mohadi’s letter would still have served as the formal or legal notice that he wanted to leave the presidium on an X date. Lexically speaking, a resignation letter does not need to fit any given template.
Of course vice-presidents are not governed by our labour laws and stuff. If the exit was not proper, the exit clauses in our constitution allow the vice-president to approach the Constitutional Court for remedy.
From the perspective of constitutional interpretation, it must be stated that, whether we adopt the literal or ordinary reading of constitutional provisions; the reading into the provisions of the constitution or living constitutionalism approach or other approaches such as Dworkin’s moral truth, the best way to interpret constitutional provisions is simply to read them and read into them, minding the usage of the conjunction.
The bottom line, which is known in legal circles, is that the vice-president resigned. What is the effect of his resignation from a constitutional view? This is what constitutes a resignation? This was the issue for those familiar with the impasse between l Mugabe and former Chief Justice Gubbay, where the public announcement by a President appeared to constitute a resignation.
When a public official is no longer exercising a public function, he ceases to exercise public authority. Whether we take Madhuku’s inner eye or other simplistic interpretations that have been proffered, we must also consider the tenor of democracy and sovereignty espoused by the Constitution if we are to properly decide whether the President violated our state constitution.
To do otherwise will be to trivialise the constitution and its sovereignty. Interpretation of a constitution is not equal to the construction of the constitution. The inner eye approach is close to the rule of non-identity, A is not A, a provision is not what it is, the map is not the territory. Wiser course.
Even if we apply the non-allness rule, A is not all A, the map does not represent all territories. To transpose this to the Mohadi resignation, the Sixth Schedule is invoked to avoid the process of abstracting or selectively leaving out constitutional details. The cure to this fallaciousness is an orientation of the citizenry, both ordinary and public, to the non-identity and non-allness rules.
We can make statements about constitutional statements, without conspiracy theories on whether one conforms or does not conform to the powers that be. This regrettably is lacking in our constitutional debates with some being labelled conformist and others nonconforming.
Forcing the President to appoint a vice-president outside what is contemplated by the constitution is to try and elevate the simplistic approach of reading the constitution to the level of a tool to take us towards a constitutional crisis, if not unconstitutional conduct.
It is also akin to democratic deconsolidation since the President is being asked to sacrifice constitutionalism at the altar of political and ideological convictions. The constitution will be the biggest loser.
From the political question doctrine, which l believe constitutional critics are deliberately ignoring, Mohadi’s resignation does not make much of a dent, legal or constitutional, in the overall strength of the Presidency or constitutionalism, separation of powers and the rule of law, and Zimbabwe will remain deeply stable, pending the President’s future appointment of a vice-president.
In that case, the future appointment of a vice-president, which requires a literal translation will become for Zimbabwe what the constitution provides for in relation to running mates. It is too soon to accuse the President of abdicating on his responsibilities or to call for impeachment alarm bells in the absence of any constitutional provision to the contrary. The Sixth Schedule remains the smoking gun, not the façade.
Vice-President Constantino Chiwenga and Mohadi were not appointed using the running mate clause, which would force the President to exercise his appointment powers in terms of direct democratic powers envisaged in Section 92 of the Constitution.
Mohadi and Chiwenga were presidential appointees and they can, if they do not voluntarily resign, be at the whim of the President in terms of the Sixth Schedule and other procedural safeguards that came up in the Mnangagwa case when he challenged his dismissal by Mugabe.
The logical corollary of the above is that the President of the Republic is, at the moment, at large to make another vice-president appointment as and when he finds a suitable candidate. This was made possible by the unilateral act of termination of the presidency done by former vice-president Mohadi.
Hofisi is a constitutional lawyer and transformative transitional justice practitioner, normative influencer and disruptive thinker.