Can a Vice President Hold a Ministerial Portfolio?

This article is also published in The Herald today, 18th December 2014. It is the second after yesterday’s piece on constitutional breaches over the failure to hold a by-election after the appointment of former Vice President, Joice Mujuru in September 2013.

Can a Vice President Hold a Ministerial Portfolio?

Alex T. Magaisa

There are few constitutional questions that have arisen over the last couple of weeks and they require some commentary. The first is whether it is constitutionally permissible for a Vice President to also hold a Ministerial portfolio at the same time. The second is whether it is constitutional and fair for a person who is elected by the people to lose a seat in Parliament simply because he or she would have been appointed as Vice President. Finally, it has been asked whether the old Constitution still applies at all. I will deal with each in turn.

When President Mugabe appointed the two Vice Presidents last week, he assigned a Ministry to each of them. Under this arrangement Vice President Mnangagwa will retain his role as Minister of Justice, while his fellow VP, Mphoko was assigned a role in national healing and reconciliation. Members of the public have questioned whether this constitutionally permissible, for a Vice President to also be in charge of a specific Ministry. My reading of the Constitution is that there is no constitutional barrier to this arrangement. All references to sections in this article will be in respect of the Constitution unless specifically stated otherwise.

The provision that most people have raised is s. 103 which provides that the President and his Vice Presidents must not, directly or indirectly, hold any other public office while they are in office. A Ministerial office falls within the definition of a “public office” under s. 332, which states that a public office is “a paid office in the service of the State”. On a strict reading of s. 103, it would therefore, appear that appointing a VP to a Ministerial role would seem to be impermissible. However, in my opinion, s. 103 cannot and should not be read in isolation. There are other provisions that must be considered and it is to these provisions that I now turn.

In the first place, s. 99 which deals with the functions of Vice Presidents provides as follows:
“The Vice Presidents assist the President in the discharge of his or her functions and perform any other function, including the administration of any Ministry, department or Act of Parliament, that the President may assign to them”.

This provision alone is very clear that the Vice Presidents may be assigned a Ministry to administer. On that basis alone, there is nothing wrong with the arrangement where the current VPs have been assigned specific Ministries to administer. The Constitution permits it. This may not be the ideal situation but the Constitution allows it.

Further and in any event, there is also s. 104(1) which provides that the President “… may reserve to himself or herself the administration of an Act, Ministry or department”. Since the Vice Presidents effectively assist the President in carrying out his functions, it could be argued that he could legally assign his lieutenants to administer whatever Ministry or Ministries that he would have reserved for his office under this provision. In this case, it would be said that he reserved the Ministry of Justice and the department of National Healing for himself and that further, he has delegated the functions to his Vice Presidents. This, in my opinion, would still be legal.

The second question is why should a Vice President who is also an MP lose his or her seat when appointed to the Vice Presidency? Why should an elected person lose his or her seat in this manner? The answer to this is very simple. This is what the law demands. That is what s. 129(1)(c.) states and the end of tenure is by operation of the law. If this is undemocratic, the only way to resolve it would be to amend the provision but as long as it stands, it has to be followed.

In any event, there is nothing unfair here, in my opinion. If an MP who is offered the Vice Presidency does not want to lose their seat they have the option to refuse the appointment. The price that you pay for the appointment to the Vice Presidency is that you give up your seat in Parliament. The idea is that you cannot be a VP for the whole country and yet still be an MP for a single constituency. I think that is fair on everyone. The same happens when a person becomes Speaker of the National Assembly or President of Senate – they lose their seat in terms of s. 129(1)(d.)

Some people have said that this provision has to be read along with s. 92 which provides for running mates and that it should not apply in situations where an MP is elevated to the Vice Presidency. This does not make sense. If anything, s. 129(1)(c.) was created especially to apply to a situation where a new VP was an MP. Under the running mates provision, s. 129(1)(c.) would actually be redundant because by virtue of being running mates, such candidates are not and cannot be MPs. When you choose to run for elections as a running mate to the Presidential candidate, you cannot run for a parliamentary seat. Thus s. 129(1)(c.) never applies to a Presidential system of running mates, except where the a new Vice President appointed to fill a vacancy where a Vice President has either been elevated, died, resigned or been removed in which case if the replacement was an MP, then he or she ceases to be an MP.

There is a further point which people are raising, which is a myth that must be dispelled once and for all. It is the view that there is a clause in the Constitution which provides that the maximum age-limit for a Vice President is 70 years. This is a myth. There is no such clause. As far as I am aware, this was proposed in the early drafts of the constitution but it was heavily opposed. It had been argued that since there is a minimum age qualification of forty years, then there should also be a maximum age limit. However, there was a belief that this proposition was no more than a mechanism to disqualify President Mugabe, who was well above 70 years at the time. However, other politicians with presidential ambitions, on both side of the political divide it has to be said, were uncomfortable with this clause as they realised it would soon catch up with them and debar them too, from contesting. Therefore, the clause suffered a stillbirth.

Finally, the Prosecutor-General was quoted as saying that the Vice Presidents were appointed under the old Constitution. I cannot understand where he got that idea from. The old Constitution is constitutionally dead and buried. It does not apply anymore. Section 2(2) of the Sixth Schedule is very clear on this where it states,

“Except as otherwise provided in this Schedule, the rest of this Constitution comes into operation on the day on which the President elected in the first elections assumes office”.

Other provisions had started operating on the publication day, 22 May 2014, as set out in s. 2(3) of the Sixth Schedule. It is true that there are provisions that have been postponed for some time, such as the running mates’ clause or the composition of the Constitutional Court but the appointment of Vice Presidents is specifically provided for in s. 14(20 of the Sixth Schedule. Clearly, if he was quoted correctly, the Prosecutor-General was wrong in this case. In future, I think the media should call for comments from the Acting Attorney General, who is the principal legal advisor to government in terms of s. 114 (4)(a) and I believe is better placed to comment on this civil issues. The instance is also a reminder that Government should seriously consider ensuring that the appointment of a substantive Attorney General is finalised. I believe the present Acting AG, Advocate Machaya is a capable and well-respected man and there is no reason why that constitutional role is still vacant.

Legal Implications of Appointments to the Vice Presidency

Yesterday, I did battle with Herald editor, Caesar Zvayi. But in the end, we shook hands and agreed that I would write an article, which The Herald would publish. This, I did and duly dispatched my contribution to Caesar. Caesar promptly responded and indicated that the article would be published in today’s issue. The article is, indeed, in today’s issue of The Herald, as promised http://www.herald.co.zw/legal-implications-of-appointment-to-be-vps/

Let me take this opportunity to publicly acknowledge Caesar for living up to his undertaking and also for the fact that the article has been reproduced in the manner that I wrote it. He has done an honourable deed on this occasion. Some readers of The Herald might find it too strong for their taste but the courage to publish it should be be acknowledged. I shall, from time to time, take up the standing invitation to contribute further, through that channel. There is no good reason why Zimbabweans must not benefit from different contributions in the pot of ideas.

I should also use this opportunity to say, in my opinion, this minor episode is a representation of what our nation badly needs at this moment. We can differ in so many ways, but at the end of the day, we must be able to find common ground, because it exists. We must be decent toward each other and share our differences without being hostile or fanning the fires of hatred.

I am aware, of course, that one episode does not change the course of events and that what has happened in the last 24 hours one minute dot on the bigger picture. But it gives us, the hopelessly hopeful ones, some reason to hope. What follows is a copy of the article as published in The Herald today:

Legal Implications of Appointments to the Vice Presidency

Alex T. Magaisa

The purpose of this article is two-fold: first, to respond to the commentary in The Herald yesterday on the issue of vacancies in Parliament arising from the appointment of the Vice Presidents and second and more importantly, to elaborate on the implications of constitutional breaches arising from these events.

The story ended with a broad accusation “misinformation, disinformation and misrepresentation” on my part regarding the true position of the national Constitution in these issues. I objected quite firmly, to that accusation and argued that, in fact what the paper had reported was exactly the same point that I had made in two previous articles as published on my blog, http://www.newzimbabweconstitution.wordpress.com

In further robust engagements with the editor, we eventually agreed that we were, in fact, of the same mind on the application of the Constitution and therefore that I had not misinformed on that issue. It was then that I offered to elaborate on the issue, which offer was accepted. This, therefore, is my contribution to the pot of ideas.

There are five points that I wish to make:

• First, that in terms of s. 129(1) (c.) of the Constitution, when an MP is appointed to the position of Vice President, his or her seat becomes vacant. This vacancy arises by operation of the law.

• Second, following directly from the above, that there were two vacancies in the National Assembly, arising from the appointment first, of Honourable JTR Mujuru on 11th September 2013 and more recently, Honourable ED Mnangagwa on 12th December 2014, to the Vice Presidency of Zimbabwe.

• The third is that there was a need to have by-elections to fill these vacancies pursuant to s. 158(3) of the Constitution.

• The fourth point is that since there had been no by-election following the vacancy in former VP Mujuru’s old constituency, there was an on-going breach of the Constitution.

• Finally, since the function and duty to call by-elections falls on the President and since the Zimbabwe Electoral Commission (ZEC) is responsible for supervising and organising elections, it was these institutions, namely the Office of the President and ZEC that were arguably in breach of the Constitution.

The core issue first arose when a reader of my blog asked whether it was possible for Honourable VP Phelekezela Mphoko to be appointed as Vice President when he was not an MP. It was then that I explained that a person did not have to be an MP to qualify for appointment as a Vice President but that in fact, if you were an MP, your seat would become vacant on account of s. 129(1)(c.) of the Constitution.

The qualifications for Vice Presidency are set out in s. 91 of the Constitution and being an MP is not one of them. I pointed out that because of s. 129(1) (c.), the newly appointed VP Mnangagwa’s seat in the Midlands, had also become vacant by virtue of his appointment.

The implication of all this, of course, was that the seat formerly held by erstwhile VP Mujuru had also become vacant when she was appointed VP on 11th September 2013. There had been a glaring omission for more than 12 months when that vacancy was not filled. No explanation has been offered as to why this did not happen.

It was on this basis that I took exception to The Herald’s charge that I had “misinformed, disinformed and misrepresented” on the law, when to my mind, I was probably the lone and first voice to have brought this issue to public attention through my blog. My views on these issues are motivated not by my political inclinations but by my belief in the importance and supremacy of the Constitution and that it must be upheld at all times, without fear or favour.

As someone who participated in the constitution-making process, as a technical advisor to Copac, I have always been ready and willing to share my thoughts on the Constitution, explaining to the public the meaning and implications of key clauses, especially as they apply to current affairs. It is for this reason that I started the blog.

It was in this spirit that I argued in the same vein, that the President had the powers to hire and fire the VP under s. 14(2) of the Sixth Schedule, at a time when most people believed that the applicable provision was s. 97 of the Constitution. I explained why s. 97 did not apply. I still believe that the President was misled and wrongly advised to dismiss VP Mujuru using s. 106 (2)(b) of the Constitution because there is a simple and more straightforward facility under s. 14(2) of the Sixth Schedule, as read with s. 340(1) of the Constitution, which states that,

“Except as otherwise provided in this Constitution, a power under this Constitution to appoint a person to an office includes a similar power – (f.) subject to this Constitution, to suspend or remove the person from office”.

Thus in addition to the fact that the VP serves at the pleasure of the President, the President could invoke his powers under s. 340(1) above.

Back to the issue at hand, while The Herald apportions blame to ZEC for failures in regard to dealing with the vacancy that arose on September 11th 2013, when former VP Mujuru’ seat became vacant , I believe there is a glaring omission and shifting of responsibility here, which is unhelpful. The story omits the fact that the responsibility for calling by-elections falls squarely on the President. By virtue of s. 129(1) (c.) the vacancy arises by operation of law and it does not become vacant because it has been declared as vacant. Any declaration is mere confirmation of an existing fact at law.

It is very easy to apportion blame to ZEC, as the paper has done, but the truth is that the entire system failed and/or neglected in performing its duties under the Constitution. This system consists of various parties, all of whom have a role in these matters. For example, the Speaker, as head of Parliament, should have known that a vacancy had occurred when one of the MPs became Vice President. The Clerk of Parliament, as the chief administrator of Parliament, should have noted the vacancy and advised the Speaker. For its part, ZEC as the supervisor of elections, should have noted the vacancy, too and advised the relevant authorities that a by-election needed to be held. But ultimately, the responsibility to call elections falls upon the President in terms of s. 110(2)(e.) and in terms of s. 158(3), both of the Constitution.
S. 110(2)(e.) states that,

“Subject to this Constitution, the President is responsible for – calling elections in terms of this Constitution”.

This means it is the President who has the constitutional obligation to call elections, including by-elections, which are provided for in the Constitution. The President’s office should have known after the appointment of VP Mujuru that a vacancy had arisen in the National Assembly and that it needed to be filled.
In this regard, s. 158(3) states that,

“Polling in by-elections to Parliament and local authorities must take place within ninety days after the vacancies occurred unless the vacancies occur within nine months before a general election, in which event the vacancies may remain unfilled until the general election”.

This means that the by-election in the constituency formerly held by former VP Mujuru should have been called by mid-December of 2013, when the 90 days from 11 September expired. The fact that this was not done is a glaring breach of constitutional duties and obligations on the part of those who have them.

It is important, in this regard to take note of the duties of the President as provided for in terms of s. 90 (1) are to “uphold, defend, obey and respect” the Constitution as the supreme law of the nation and must ensure that the Constitution and all other laws are “faithfully observed”. Arguably, failure to call the by-election as required by s. 158(3) and s. 110((2)€ qualifies as a breach of this duty. One must take cognisance of the precedent set in the Mawarire case before the July 2013 elections in which the court ordered that an election be held by July 31 to prevent a breach of the Constitution. The reasoning was that it was necessary to arrest the breach of the Constitution.

This matter needs to be corrected and a citizen does not have to go to court to ensure that corrective measures are taken. However, since there is a plain breach of the Constitution, it is important for Government to officially acknowledge and admit to its wrongdoing by omission and to apologise for the breach.
It is important that Government inculcates a culture of observing and upholding the Constitution and where it fails it must acknowledge the same and take corrective measures. When Zimbabweans voted for the new Constitution in the Referendum on 16th March 2013, they did so in an overwhelming manner, signifying a collective desire to establish a new constitutional order. Zimbabweans committed themselves to uphold and defend, among other values and principles, the supremacy of the Constitution, the rule of law and the recognition of and respect for the liberation struggle. They are all painfully aware of the sacrifices that were invested in the struggle for liberation, the values of which are enshrined in the national charter and which must be jealously guarded.

It is for this reason that it is critical that the Constitution be upheld, respected and defended, particularly by those holding high office, who are agents of the people from whom authority to govern is derived as confirmed in s. 3(2)(f.) of the Constitution and related provisions throughout the Constitution, for example, s. 88 which states that, “executive authority derives from the people of Zimbabwe and must be exercised in accordance with the Constitution.

Dr Magaisa is a Zimbabwean lawyer currently based at the University of Kent and was a technical advisor to the team that wrote the new Constitution of Zimbabwe. He can be reached at wamagaisa@yahoo.co.uk Visit his blog at http://www.newzimbabweconstitution.wordpress.com

Mr Speaker, Sir: Letter to the Speaker of Parliament

Oft-times, when we engage in legal and constitutional analysis or even political analysis, I do so in the hope that someone in a position of influence, such as an MP or a politician, will take up suggestions and bring them to the relevant authorities. However, this hope sometimes is too ambitious. People read, sometimes they enjoy, sometimes they sulk and they wait for the next one. I raised the issue of the potential breach of the Constitution a few days ago and thought someone would take it up with the relevant authorities. I have not heard much of the case, not even from civil society and the opposition.

So I thought I would go a step further and prepare a template of a letter/petition, whatever you might call it, addressed to the head of Parliament. All one needs to do is to take a copy and paste – you have my permission – and send it to the Speaker, copy it to ZEC and the Office of the President and Cabinet, too. It would be good to get their response to the issue raised. That is the least that we as citizens and civil society can do – demand that the Constitution be upheld, particularly where breaches are apparent. What follows below is the letter/petition, whatever you want to call it.

I have not got the email of the Speaker but this is the Clerk of Parliament’s email as given on the parliament’s website: clerk@parlzim.gov.zw If anyone has the Speaker’s email, we would be grateful if you could supply it, please.

The Honourable, Speaker of Parliament, Mr Jacob Mudenda,

Re: Declaration of vacancies in the National Assembly pursuant to s. 129(1) (c.) of the Constitution of the Republic of Zimbabwe (hereafter, “the Constitution”)

Dear Sir,

I write this letter as a citizen of the Republic of Zimbabwe (hereafter, “the Republic”), pursuant to rights provided for generally in the Constitution and in any event, enshrined in s. 149 of the Constitution, which provides for the right of citizens to petition Parliament on any matter that falls within its authority.
In terms of s. 135 of the Constitution you, Mr Speaker, Sir, are the designated head of Parliament and it is in that capacity that I address this communication to you.

However, as this is a matter that concerns electoral issues, I have also copied this letter to the Chairperson of the Zimbabwe Electoral Commission (hereafter, “ZEC”). A further copy is also made to the His Excellency, the President of the Republic (hereafter, “HE the President of the Republic”), whom, in terms of s. 90 of the Constitution has a duty to “uphold, defend, obey and respect” the Constitution and is required to ensure that the Constitution and all other laws of the land are “faithfully observed”.

In this regard, I would like to bring to your attention the following provision, namely, s. 129 (1)(c.) of the Constitution, which states that,

“The seat of a Member of Parliament becomes vacant – …
(c.) upon the Member becoming President or Vice President”.

My understanding of this provision is that once an MP is elevated to the position of President or Vice President, then his or her parliamentary seat becomes vacant. This is very clear and unambiguous. Once the vacancy arises, a by-election must be called in the constituency within 90 days of the vacancy arising in terms of s. 158(3) of the Constitution. In terms of s. 110(2) (e.), the function and duty to call elections in terms of the Constitution falls upon HE the President of the Republic.

Since the Constitution came into force on the effective date, I understand that at least three persons have on separate occasions been appointed Vice Presidents of the Republic and I understand further, that 2 of them have been MPs in the National Assembly. In this regard, on Friday 12th December 2014, Honourable ED Mnangagwa who held a seat in the National Assembly, was appointed Vice President of the Republic. At that point, his seat became vacant in terms of s. 129(1)(c.) of the Constitution. I would be grateful if you could please, kindly confirm that this is the correct position and that, therefore, my understanding is correct that a by-election will have to be called by HE the President of the Republic before the expiry of 90 days.

Further, Mr Speaker, Sir, I note that on 11th September 2013, HE the President appointed Honourable JTR Mujuru as Vice President of the Republic of Zimbabwe. It follows that by similar reasoning, and under the above interpretation of s. 129(1) (c.), her parliamentary seat became vacant and a by-election should have been called within 90 days from the date of appointment pursuant to s. 158(3) of the Constitution. By my estimation, a by-election should have been called in the relevant constituency by latest, 10th December 2013 or in any event before mid-December 2013. To my knowledge, no by-election in that constituency was ever called. In the circumstances, there is a prima facie case that the Constitution has not been followed in this regard.

Mr Speaker, Sir, when I joined my fellow Zimbabweans to vote for a new constitution in the Referendum on 16th March 2013, we did so in an overwhelming manner, signifying our collective desire to establish a new constitutional order. We committed ourselves to uphold and defend, among other values and principles, the supremacy of the Constitution, the rule of law and the recognition of and respect for the liberation struggle. We are painfully aware of the sacrifices that were invested in the struggle for liberation, the values of which are enshrined in the national charter.

It is for this reason that I believe it is of the utmost importance that the Constitution be upheld, respected and defended, particularly by those holding high office, who are agents of the people from whom authority to govern is derived as confirmed in s. 3(2)(f.) of the Constitution and related provisions throughout the Constitution, for example s. 88 which states that, “executive authority derives from the people of Zimbabwe and must be exercised in accordance with this Constitution”.

It is my respectful view, Mr Speaker, Sir, that there is already an on-going breach of the Constitution, in that a by-election has not been called when it should have been. It is important to officially acknowledge and correct this contravention. Finally, it is my hope that the same breach will not be allowed to occur and/or persist in respect of the seat formerly held by Honourable VP ED Mnangagwa.

Yours sincerely,

Alex T. Magaisa

Citizen of Zimbabwe

The Problem of Triumphalism

The Problem of Triumphalism

Alex T. Magaisa

A few days ago, in an article entitled, “Life after political victory”, I wrote about the burden of success. In it, I implicitly warned about the danger of triumphalism – that whilst the Mnangagwa faction had claimed victory in the gruelling factional battle for leadership in Zanu PF, it was necessary to manage it carefully. While some celebration of success is to be expected, there is always the risk of overkill, a risk of alienating further, than dividing a people, with all the dangerous consequences that comes with such circumstances.

The papers report that a celebration party in honour of newly appointed VP Mnangagwa was held at his rural mansion in Zvishavane. This is all very well – in our culture, a boy must return to his roots, the land where his umbilical cord is tied to the earth, and pay homage to his ancestors. The traditional type would even perform a libation, pouring an intoxicating beverage into the ground, representing an offering to the ancestors, paying homage and gratitude for their act of benevolence in enhancing the fortunes of their earthly son. Others, of a different religious persuasion, would offer prayers, thanking God for his generous favour. Most now do both – they thank God but also, often privately, offer their acknowledgments to the ancestors. Therefore, the Zvishavane celebration is not of itself a problem.

But then you hear more celebration parties are lined up elsewhere and you get the sense that there is more to the parties than the traditional purpose. These are political statements, designed to flaunt newfound status and assert superiority, indeed, to cement the victory. Next, they will be countrywide, organised by provincial structures and war veterans, all intended to assert political authority.

The trouble is you get the sense that there is very little comfort in this victory. There seems to be a lot of unsureness, indeed, a great deal of insecurity after the event. Hence the State media which led the assault continues as if the battle is still on, as if the goal of achieving political victory in the succession war is not yet won. It’s as if, after dismantling the Mujuru faction, they have nothing else to write about and they must continue as if they are still on the warpath. The fact of the matter is that Mujuru is no longer VP, which is what they wanted and that he allies are gone too. But now it’s as if after fighting so hard and winning power, they have no clue what to do with it, rather like what has happened since July 31 2013, when instead of concentrating on the mandate to govern, they never stopped ranting about Tsvangirai and the MDC.

And you hear too, that so-called Mujuru allies, including government ministers and officials are identified and thrown out of such celebratory events – as is alleged to have happened to deputy Mines Minister, Fred Moyo. One could say it is foolhardy, of course, for anyone who should know that they are not welcome to attend such an event, but equally, leaders ought to show magnanimity in victory. That this is allowed to happen shows not only the existence of seriously bad blood between the factions but that there may be more recriminations in future. There are too many ingredients to suggest that without good leadership characterised by a restraining hand, the nation may be headed for a bitter conflict. The victory has come at a high cost and there is obviously a reservoir of displeasure and disgruntlement within Zanu PF circles at what has happened.

The new VP Mnangagwa should use his power to exercise the hand of restraint that is required to manage this potentially explosive situation. Triumpulism can breed overzealousness, especially among excitable youths who are prone to wanton displays of infantile behaviour. One has to demonstrate magnanimity in victory rather than further humiliating and alienating the defeated faction. But already, we hear grown men like Josiah Hungwe expressing fawning adoration of the new Vice President. He joins a long and embarrassing list of politicians, on both sides of the political divide it has to be said, who have shamelessly dressed their political bosses in Messianic robes.

Calling Mnangagwa “the Son of Man” may be regarded as political banter within their private circles, suggesting most probably that he is Mugabe’s favourite, but such language does not sit well in a nation that is deeply religious and neither do the connotations bode well for a nation that is in need not of demi-gods but humble leaders who serve the people. It is such fawning behaviour that has made our leaders think they are untouchable; indeed, to imagine that they are infallible. It is precisely the kind of behaviour from which as nation we should be departing and embracing a new culture of accountability. Hungwe should be ashamed of himself but equally, Mnangagwa should call them to order if his leadership is to inspire confidence among those who doubt him.

The trouble is we might have another round of parties, which means more rallies and more speechifying and fawning adoration as Mnangagwa is described as the anointed one. And more Zimasset promises. But still without delivery. The people of Zimbabwe do not need more celebratory parties and rallies. Just get on with it and deliver!

wamagaisa@yahoo.co.uk

A (Not So) Lighter Look at Mugabe’s Reshuffled Cabinet

A (Not So) Lighter Look at Mugabe’s Reshuffled Cabinet

Alex T. Magaisa

So yesterday, President Mugabe finally announced the much-anticipated Cabinet reshuffle. It is not the first time that he has dropped ministers in reshuffles but this occasion stands out because of the mass cull that took place, which was unprecedented. It was a mass cull of the Mujuru faction, not based on meritocracy but rather, on the fact that they were in the ‘wrong basket’ in the factional fights that affected Zanu PF.
Therefore, while some people have been expecting replacements to be based on merit, these expectations have been wildly misplaced. The equation was only ever going to be balanced by introducing replacements that were politically correct as defined mostly by the winning faction.

Khaya Moyo

Apart from Mujuru, who lost her Vice Presidency, the other big loser was Simon Khaya Moyo, who not only fell from the lofty heights of National Chairman to be appointed National Spokesperson for the party, but found his hopes of landing the co-Vice Presidency floundering in a spectacular manner.

When he was appointed Senior Minister by President Mugabe in August 2013, after the elections, most people thought this was merely a warm-up for the Vice Presidency, which was his to lose. Maybe then we should have seen that Mugabe was in fact hesitant. He was buying time to execute his plan, while selling everyone a dummy. As it happened, Khaya Moyo’s dream collapsed and he has now been shunted to the newly-created Ministry of Economic Planning. It is hard to see what he will spend his time doing there when Chinamasa is in charge of the more powerful Finance portfolio, which invariably handles economic issues.

The fact of the matter is that Khaya Moyo has been demoted, both in the politburo and in Cabinet, probably paying the price of alleged association with Mujuru and her allies. It is possible he may have begged for forgiveness and shown remorse at the last minute. Grown men have been known to cry before the leader, pleading for a moratorium; begging for the proverbial second chance. These things happen – when it gets hot, some people run for cover operating under the principle of self-preservation, even if it means leaving their allies in the lurch.

But even this may be scant consolation for Khaya Moyo. He is the marathon runner who sprinted ahead of the pack, far ahead of the crowd, only to tire and stumble at the very end, just when the finishing line was in sight. Indeed, only to see a hitherto unfancied rival pipping him at the end. Few people remember Vice Presidents but no one remembers ministers of economic planning. For a man who once sat at the high table popping champagne and fine wine, it is a lot harder returning to the boys’ table to imbibe waters of a coarser character.

Phelekezela Mphoko

Phelekezela Mphoko is the dark horse who came in at the last minute and snatched Khaya Moyo’s cookie, just as he was about to take a bite. Now, the man about whom little is publicly known, is the co-Vice President. It has been a remarkable rise from political obscurity. Those who know him vouch for his liberation credentials – as one of the leading men who fought under Zipra, the old Zapu’s military wing. I imagine Zapu veteran Dumiso Dabengwa, now out of favour in Zanu PF, must have been watching the drama and thinking it could have been him. A highly respected veteran of the war, Dabengwa became disaffected and left Zanu PF, after serving in government in senior roles for many years.

Notable about Mphoko’s new role is that it has become a pattern for Mugabe to place on the shoulders former Zapu cadres, the burden of national healing and reconciliation. It is largely former Zapu supporters in the Mdlands and the Matabeleland regions who bear the scars of Gukurahundi, the sordid episode which Mugabe himself has described as “a moment of madness”, when thousands of civilians were senselessly massacred by state-backed troops. During the Inclusive Government, it was John Nkomo who co-chaired the portfolio that carried that responsibility, in a tri-partite arrangement with the MDCs. Now, another former Zapu leader has been asked to do the same. It will be interesting to see how he approaches that issue, if he ever does at all.

Mushohwe

Chris Mushohwe’s is an intriguing case. A former senior functionary in the Office of the President, it is plain that Mugabe has a soft spot for him. He was appointed Minister of State in charge of Manicaland last year and he has now been elevated to Minister of Youth and Indigenisation, probably to the disappointment of many Zanu PF youths who were expecting a peer to be given such a portfolio. They were at the forefront of the recent purge and they might have expected some reward. But once again, they have been snubbed. That should teach them a few lessons – that they can be used but they can be ignored too. But Mushohwe’s case has weightier issues than the disappointments of excitable Zanu PF youths.

It’s a curious case because not very long ago, Mushohwe was in the news over youths and indigenisation but for all the wrong reasons. When he stood before a Parliamentary Committee on Youth, Empowerment and Indigenisation earlier this year, Mushohwe had great difficulty in explaining large payments that had allegedly been made to communities in Manicaland by diamond companies operating in Marange.

The Committee heard that funds from diamond companies meant for the Marange-Zimunya Community Share Ownership Trust were paid into an account that was allegedly controlled by Mushohwe. Asked to account for what had happened, Mushohwe stuttered and stumbled, giving inconsistent and implausible statements that were unconvincing even to the most sympathetic listener. At one point, he claimed that he had “forgotten” that he had written letters that he had written to the diamond companies, demanding payments to his account. “I had forgotten that I wrote the letter, this is my signature”, he sheepishly admitted when eventually shown one of the letters by the Committee.

But after a few weeks, the matter went cold. The media has done no follow-ups. And the police have certainly shown no interest in the matter. The matter seems to have been smothered by some large hands, and has not been heard of since. The Chair who gave him a torrid time, Justice Wadyajena, the young Zanu PF MP has since become a loud praise-singer for Mnangagwa during the purge of Mujuru and her allies. He probably realised the error of his ways, as his enquiries were touching on sensitive areas, and he quickly repented.

Still, it is odd that President Mugabe, who fired his former VP, Joice Mujuru on the basis that she was engaging in corrupt activities, has now appointed Mushohwe to head the same portfolio in which his conduct was mired in controversy of which there has been no satisfactory resolution. It would be interesting to know what the Committee made of those allegations and whether they cleared Mushohwe of wrong-doing. If true, it makes a mockery of the claims that this new cabinet is designed to do things differently especially where corruption and impropriety is concerned. Nothing has been said about those diamond funds and whether the poor communities of Marange and Zimunya ever got anything in the end.

Oppah Muchinguri

Oppah Muchinguri could be regarded as one of the big winners of the reshuffle. She committed an act of political sacrifice when she made way for First Lady Grace Mugabe, as head of Zanu PF’s Women’s League. But to be sure, she never had a choice, did she? If the Big Mother says she wants it, you have to give her. Grace wanted to be head of the Women’s League and Oppah was not going to stand in her way. Oppah simply followed the character of water, which pursues the line of least resistance. Her pragmatic approach in the face of adversity ensured handsome rewards with the move from the Ministry of Women’s Affairs to the Ministry of Higher Education.

I have said before in these pages that there was a strong possibility that Grace Mugabe could end up in cabinet as Minister of Women’s Affairs and this is still a significant possibility given that it is the one Ministry that was left vacant during the reshuffle when previous holder Muchinguri was moved. Muchinguri who was head of the Women’s League was also Minister for Women’s Affairs so it would not be unusual if Grace Mugabe as new head of the Women’s League were to be given the women’s portfolio in cabinet. Why he did not announce it was probably tactical. They may have figured out that it would be the big news that would overshadow the Vice Presidency, which is supposed to be the big news of the week.

The Mutsvangwas

Few figures played a more prominent role in the purging of the Mujuru faction than Chris Mutsvangwa. He was the Rottweiler that attacked relentlessly from the very beginning, casting serious doubt on the narratives ascribed to Mujuru’s war heroics and questioning her leadership qualities. Grace later took it up a higher notch but it was Mutsvangwa who had led the assault. Later, he landed the powerful post of War Veterans chair, taking over from the ousted Jabulani Sibanda, seen as a Mujuru ally.

When he was not picked for the Politburo last, some thought this was a snub against a man who had given his all for the faction’s cause. But he has earned his reward, with the elevation to full Minister, graduating from the Deputy Minister’s role he held in Foreign Affairs. There, he was plainly uncomfortable and had, on more than one occasion, clashed significantly and in a most public manner, with his boss, Simbarashe Mumbengegwi. Mugabe seems to have a soft spot for Mumbengegwi, who despite having been discarded in Masvingo, was rescued by Mugabe and appointed to the Central Committee last week.

Mutsvangwa’s ministry is a curious one – he will be responsible for the welfare of war veterans. This is the first time that war veterans have got an entire ministry dedicated to their needs and interests. Politically, this is a very serious matter because it recognises war veterans as a critical department and constituency of government. War veterans have always played a key part in Zanu PF political life, particularly in elections campaign. Now, however, it means this key arm of Zanu PF will be resourced and financed directly by the State and in the process not only disadvantaging other political players but also potentially contravening the political parties’ financing legislation. Through this ministry, Zanu PF has effectively opened a legal channel of securing financing from the State.

For Mutsvangwa, it is also a sweet family affair, with his wife Monica Mutsvangwa being given the Deputy Minister’s role in the Information Ministry, where she will work with Jonathan Moyo. Monica Mutsvangwa had suffered badly in the previous two years. She had been appointed a deputy minister towards the tail-end of the Inclusive Government but had not been reappointed after elections last year. Then, when she contested for the Chair of Manicaland, she had lost in controversial circumstances. She claimed that there had been massive rigging and blamed Didymus Mutasa for it.

Incidentally, Emmerson Mnangagwa had overseen those elections. He declared that they were no problems but clearly, he would have noted what had happened and reported to Mugabe. The remarkable reversal of fortunes for Mutasa this year suggests that his actions had not been forgotten. Mnangagwa and his group were simply biding their time. Now Monica Mutsvangwa is back as Deputy Minister and Mutasa is in political oblivion – battered and bruised after the political whirlwind of late 2014.

The Mzenda Dynasty

The family affair goes further. Tsitsi Muzenda, whom I believe is the daughter of former Voce President Simon Muzenda is now the Deputy Minister of Energy. This must hurt Dzikamai Mavhaire, the erstwhile Energy Minister sacked a few days earlier. He was a key lieutenant of Eddison Zvobgo, who led a Masvingo faction that rivalled Muzenda’s godfather role in the province. Apart from Tsitsi another of Muzenda’s progeny, Tongai Muzenda is the Deputy Minister of Industry and Commerce. It looks like a family affair, and one might add, perhaps less generously, a family of deputies.

One key woman who most have overlooked is Auxillia Mnangagwa, who although she has not made it to cabinet yet, has already landed a spot in the Politburo as one of the deputies. One thing that Grace Mugabe will have to get used to is that one day, the country will have another first lady and that person might well be Auxillia Mnangagwa. She is already a politician and I suspect it won’t be long before she lands a spot in government. What we are slowly observing in Zimbabwean politics is the dominance of a few families and this will increase over time. This feature is not unusual even in Western democracies, too, where political families tend to dominate the political landscape.

Samuel Undenge

Samuel Undenge has been handed the Energy portfolio. Undenge is one of those understated characters who is always there and thereabouts. He is the boy who hangs around a notorious gang – he does not do much to attract individual notoriety – but he finds himself tainted by the same brush, by virtue of association. Perhaps because he has always deputised, he has always been overshadowed by larger characters. Now, however, that he has a full portfolio and one that attracts public criticism every day and night, he will be forced to come out of the shadows and to take more responsibility.

Supa Mandiwanzira

Supa Mandiwanzira is the boy who read news brilliantly on national television, ventured into the corporate world and did well, used his political networks to establish a radio station, became an MP, then a deputy minister and now he is a full minister, in charge of ICT. All very remarkable, indeed. He has kept his head low and chewed quietly. For a young, urbane and technologically-savvy young man, it might be said that the portfolio suits him well. Supa does not talk much and when he does he does not sound unreasonable.
But I always had questions about him being deputy minister in the information ministry when he was also the beneficial owner of a radio station that is supposed to be privately-owned. I thought this placed him a situation of conflict of interest, contrary to s. 106 of the Constitution, which ironically has recently been used to fire VP Mujuru. One day, I will write about the origins of that provision, because I know exactly where it came from and how – I have observed with a sense of irony that it has been used in these circumstances and have not been sure whether to celebrate or to be sad. But anyway, ICT certainly looks better with Supa than it did with the more elderly and less technologically-savvy Webster Shamhu.

JB Matiza, Mandi Chimene and others

JB Matiza’s is another interesting case. He was given the proverbial boot in the Mashonaland East Central Committee elections. This was thought to be his end. But Mugabe has rescued him and he is now the Mashonaland East provincial affairs minister, taking over from the ousted Simabaneuta Mudarikwa.

Three other appointments do little to shake the earth. Not much is yet known publicly of Prisca Mupfumira who is now Minister of Labour. Mandi Chimene has been in and out of the news for some years – she gave a spirited interview to the Manica Post recently, hitting out at Mujuru and elevating her own war credentials. The appointment is clearly a reward for her loyalty to the faction in ascendancy. The only other time we read about her recently was when she organised a shopping trip to China for her fellow parliamentarians, some of whom got stranded. It was a hilarious incident and some MPs blamed her for misleading and abandoning them in a foreign land, far away from home. Now, she is in charge of Manicaland Province, taking over from Mushohwe.

Much Ado …

… about nothing, indeed. I must conclude with one last observation. I saw a list which included Mama Victoria Chitepo, although her name had since been cancelled. I was surprised that she had ever been considered for a post in this reshuffle, assuming it was true. I like Mama Chitepo. I think she is a gracious grandmother and she did well to retain her dignity even after the tragic death of her husband, the revered Herbert Wiltshire Chitepo in 1975. She served her country well but her time and that of others in that age bracket is long gone. Every generation must at some point pass on the baton to another. That she was even considered for a post is an indictment on the character of the leadership.

So after all is said and done, what can one say of the cabinet reshuffle? Not a great deal, I’m afraid. It is the same old story. There is nothing new, nothing that will shake the earth. The worst thing about politics this whole year is that there has been no single big idea that has come from the political parties. It has all been about positions and power but nothing from the school of ideas. That is the sad state of our politics – the politics of positions but no ideas.

wamagaisa@yahoo.co.uk

Some Constitutional Questions on the Vice Presidency

Some Constitutional Questions on the Vice Presidency

Alex T. Magaisa

I must respond to two questions of a legal nature that have been posed by various readers. As it would not make sense to respond to each one separately, I thought I should do a short explanation that would also inform others who may not have considered the matters. I will consider each question in turn.

1. Should Mphoko not be an MP to be appointed as Vice President?

This question arises presumably because Phelekezela Mphoko, the other VP nominee is not at present a Member of Parliament. Those who are asking are doing so presumably because they think one must be an MP to be eligible for appointment as Vice President. This is an erroneous belief. There is no requirement that one must be an MP in order to be a Vice President.

The qualifications of a Vice President are set out in section 91(1) of the Constitution. They are the same as the qualifications for the Presidency. To be eligible, a person must be a Zimbabwean citizen by birth or descent; must be at least forty years of age; must be ordinarily resident in Zimbabwe; and must be a registered voter. Being an MP is not one of the constitutional requirements.

In fact, according to section 129(1)(c.) of the Constitution, if a person is an MP and is then appointed as a Vice President, his or her tenure of office as MP automatically ends. This means, in fact, that once Emmerson Mnangagwa, who is an MP for a National Assembly constituency will cease to be an MP upon his appointment as Vice President. That seat will become vacant and a by-election must be held within 90 days in terms of section 158(3) of the Constitution.

This, therefore, calls for the opposition to be decisive over the issue of elections – whether or not they will participate in future elections. This is an issue which I have been keen to address in these pages but unfortunately it had been overshadowed by the political drama in Zanu PF which could not be avoided. I will take an opportunity to do so in the next few days.

But back to the question: Is Mphoko ineligible for the Vice Presidency because he is not an MP? No. He does not have to be an MP.

2. Can a person who is not an MP be appointed as a Cabinet Minister?

The answer to this is yes, a person who is not an MP can be appointed as a Cabinet Minister. Section 104(3) the Constitution allows the President to appoint up to 5 ministers from outside Parliament. To show how it works, it is in terms of this provision that Jonathan Moyo, who lost his Tsholotsho seat in the 2013 elections, was appointed as Information Minister. He is not an MP, and although he is allowed to sit and speak in Parliament, he has no voting rights in Parliament.

Some will ask why the President has such a power. It is a legitimate question. It was designed to permit the President to appoint persons on the basis of their professional skills, which may be in short supply among MPs. The risk is that it becomes a rescue facility for politicians who would have been rejected by voters and would have lost in elections. It can also become a facility for politics of patronage where cronies are accommodated and rewarded by the President. Nevertheless, the intentions behind the clause are noble and in the right hands the power can be a force for good.

I hope this answers the questions.

wamagaisa@yahoo.co.uk

Life after Political Victory

Life after Political Victory

Alex T. Magaisa

Success in any endeavour is something that every individual or group strives to achieve and every effort is invested in order to attain it. It is an incredible experience and most people who have achieved moments of success know the feeling. But success also brings with it new challenges. And oft-times, when the rest of the crowd around is celebrating and others are envying the winner, it is not unusual that the winner is burdened by a feeling of uneasiness, brought by the realisation of the new challenges that success brings.

And so it is that while the parents are excited and telling the entire world that they daughter is number one in her class, the successful daughter is already concerned by the challenge of maintaining the number one spot. Because anything less would be considered a failure. While the General is congratulated for defeating the enemy in battle, he is already thinking about how to keep the enemy at bay and how to win the next battle. Success in the mind of the winner is an historical phase, indeed, a big challenge on its own that requires careful management.

And sometimes when you have used devious means to achieve success, you can be visited by a strange feeling of emptiness. And in such cases, you do not have a clue what to do with such success. You would have achieved the goal but would have no clue what do thereafter. One is reminded of the early days of August 2013, when an eerie silence and uneasiness descended upon the land, soon after the July 31 election. The victors were unsure and uneasy in their moment of supposed glory. Some, who were told that they had won, were surprised by their success, let alone by the margin of their success. It was a strange phenomenon in those days, when victors were reluctant celebrators, unsure and an uneasy in their victory. It was strange.

Now, more than a year later, the newly-named Vice President, Emmerson Mnangagwa has won a long-running battle against his erstwhile boss, former Vice President Joice Mujuru. It has been a bruising battle. It has left many wounds, soon to be scars and permanent reminders of an historic episode in the history of Zanu PF and the country that it leads. This success has hurt and disappointed a constituency that is not insignificant. It is the kind of success that comes at a heavy price – a price constituted by broken relationships, mutilated trust and broken hearts. It has created a huge reservoir of discontentment and resentment.

The now former VP Joice Mujuru thought she had it all. You could have been considered a fool if you had bet against her taking over from President Mugabe when he finally departs office by resignation or some other cause. But it was taken away and it is the manner in which it was wrested from her that would have hurt in the most painful fashion. She was mercilessly harangued by Grace Mugabe, the First Lady and humiliated by Mugabe himself before a gallery of cheering zealots. It would have hurt and hurt very badly.

She knows the man who has taken over from her was behind her downfall. Disrobed of the apparel of State authority, Mujuru and her allies may be powerless today, but Mnangagwa will be astute enough to know that they are not dead yet, whatever his most zealous supporters might say. It was her error in the lead up to 2014 Congress that caused her side to fall into complacency when they thought they had completed the job. It was this error that he, Mnangagwa capitalised upon. So he will be careful to avoid it. He will have to sleep with the proverbial eye open at all times.

But therein lies a problem that might afflict him and his allies. It is the problem of paranoia and what it might provoke. Since they realise that they effected a palace coup, bloodless though it was, they know that there is a thoroughly displeased and disaffected constituency within. The problem is how they will respond to this. They might respond to any perceived threats with a ferociously hard hand. They might begin to see threats everywhere, failing to trust even their own shadows. And they might use those threats as justification for a clampdown on opponents. Already, we have seen in the last couple of months, incidents that have been reported as ‘assassination attempts’ on Mnangagwa.

The first was a car crash in Harare involving Mnangagwa’s vehicle, which he was driving, a few weeks ago, just before Congress. People debated the incident without conclusion. Some were alarmed but others expressed doubt. Nothing much has been heard about that incident since then. The second is the most recent one, where we are told that cyanide was sprayed overnight in his office. Apparently his secretary entered the office first in the morning and she suffered the consequences. She was said to have been hospitalised.

Naturally a debate has ensued over these incidents. Sympathisers believe them to be genuine attempts on the newly appointed VP’s life. But others are more doubtful. They say these are contrived attempts at drawing public sympathy. Others are more cynical, saying these are precursors to a major clampdown, which might see worse being visited upon alleged perpetrators of these acts. Whatever the case, these incidents demonstrate the precarious and delicate nature of the matter. What is worrying, of course, is that these events are not without precedent in our political landscape and when they have happened before, they have brought dangerous consequences, the wounds of which, to date, have not healed.

Back in the early 1980s, arms caches were found on farms owned by Joshua Nkomo’s PF Zapu. There were already tensions between Robert Mugabe’s Zanu PF and Nkomo’s party. These tensions went back to the early sixties, when a group of men broke away from Zapu, led by Nkomo to create Zanu. The split was acrimonious. When they prosecuted the liberation war, they did so through the agency of their two separate military units, Zanla and Zipra. When they negotiated for independence at Lancaster House in 1979, they pulled together as Patriotic Front and the expectation among some was that they would contest the historic elections together. This failed and they contested separately, with Mugabe’s Zanu PF winning the national vote but Nkomo’s PF Zapu taking most of the Matabeleland vote.

Although Mugabe had won and had become Prime Minister, the success had brought its own challenges. The failure in Matabeleland worried him and despite a unity government at independence, relations with Nkomo and PF Zapu were always uneasy. Those relations broke down when those arms caches were allegedly discovered. This was exacerbated by the sporadic incidents of dissident activity in the region, which Mugabe blamed on Nkomo’s Zapu. In his book, The Story of My Life, Nkomo pleads innocence. Kevin Woods, the CIO operative who worked as a double-agent for the South African Apartheid regime points to the sabotage carried out by so-called “Super Zapu” dissidents, who were sponsored by the Apartheid regime, to destabilise the newly independent State across the Limpopo.

But it was in that time that Mugabe was quoted as saying that when a cobra enters the home, the only way to deal with it was to crush its head. Relations with Nkomo and Zapu broke down completely. Nkomo fled Zimbabwe. The legend was that he dressed as a woman when he crossed the border into Botswana but it is an account that Nkomo denies vehemently. Gukurahundi followed – a brutal military operation that left thousands dead and displaced. The brutal operation only ended when Zanu and Zapu signed the Unity Accord in 1987, in terms of which the two became one political organisation, to be known as it is now, Zanu PF. Incidentally, Mnangagwa was Mugabe’s security minister during that time.

It is unlikely that the present acrimony will take us back to that dark period. But that dim era remains a grim reminder of how badly things can go if political acrimony is not carefully managed. Whether or not these alleged assassinations attempts are genuine, the hope must be that they are not a precursor to a period of political clampdown or worse, public emergency, under which most of the fundamental rights will be suspended. These are extremes but our history teaches us not to rule out anything.

It is clear that the victory for Mnangagwa and company has come at a huge cost. They will need to manage it carefully and find a way of handling their broken comrades. They are the ones that now have power but with power also comes serious responsibility. They will need to exercise their power responsibly. And in this regard a word needs to be said of the State media.

The State media has, throughout the recent battle for leadership, specialised in spewing vitriol and in some cases they have crossed the line and entered the arena of hate speech. They have used their power to whip up emotions amongst the political mob. The mob has responded with hate speech, too, taking a cue from the dominant State media. It is time to tone down this kind of behaviour. It is unnecessary. History reminds us that the media had a key role in the Rwandan genocide and in the atrocities that took place following the Kenyan elections in 2007. The media has to be more responsible. This is an issue the opposition has been talking about for many years and we have seen it again in the recent internal battle. It perpetuates a retrogressive culture. By all means pursue the criminal allegations – but there is a legal arena for that and if there is any seriousness, the legal facilities must be used.

Finally, success is a great feeling but it also brings new challenges and responsibilities. It means the deed is done but it also means new challenges await confrontation. It means the heightened challenge of avoiding failure. And in this case, it means facing the challenge of fulfilling the dreams and aspirations of many but also the challenge of handling the fall-out from the bitter and acrimonious fight that preceded the most recent success.

wamagaisa@yahoo.co.uk