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A
note on the re-appointment of the service chiefs
Derek
Matyszak, Research and Advocacy Unit
February
08, 2012
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The
Commanders of the Defence Forces and the Commissioner-General of
Police are appointed by the President both under the provisions
of the Constitution
and in terms of Acts of Parliament.
The Constitution provides that the appointments are made "by
the President after consultation with such person or authority as
may be prescribed by or under an Act of Parliament." Relevant
Acts of Parliament (the Defence Act and Police Act) set out the
manner of appointment and persons or bodies to be consulted.
Since the advent
of Zimbabwe's Inclusive
Government, and for so long as such "unity" Government
subsists, an important addendum has been added to these provisions.
Article 20.1.3(p) of Schedule 8 to the Constitution (which overrides
any provisions elsewhere in the Constitution to the contrary) requires
that any key appointment made by the President under and in terms
of the Constitution, or made by the President in terms of or under
any Act of Parliament, be made only after the consent of the Prime
Minister has been first secured. The appointments of the Service
Chiefs, being made both under and in terms of the Constitution and
Acts of Parliament, thus fall squarely within the requirements of
Article 20.1.3(p).
Article 20.1.3(p)
reads as follows:
The President
in consultation with the Prime Minister, makes key appointments
the President is required to make under and in terms of the Constitution
or any Act of Parliament
"in consultation"
is specifically defined in the Constitution to mean: that the person
required to consult before arriving at a decision arrives at the
decision after securing the agreement or consent of the person so
consulted;
In sum then,
this means that the Prime Minister's consent is required before
any of these appointments are made.
Zimbabwe's
Attorney-General, Johannes Tomana has threatened to arrest anyone
who claims that this is the case, maintaining that the legal position
is otherwise. Mr. Tomana's argument is that the requirement
to gain the Prime Minister's consent pertains only to appointments
and not re-appointments, stating that Commissioner-General Chihuri's
case:
- is about
reappointment, not appointment. The GPA
deals with appointments. The GPA uses specific language, it refers
to appointments and not reappointments and the issues considered
in appointments are very different from those that are considered
in reappointment.
However, the
Attorney-General argument is disingenuous for two reasons. Firstly,
he has deliberately referred only to the GPA (the Global Political
Agreement, the name by which the Inter-Party Political Agreement
signed between the main political players in Zimbabwe on 15th September
2008 is commonly known). This part of the GPA has been incorporated
into Schedule 8 of the Constitution. The President's obligation
to gain the Prime Minister's consent is thus not merely an
undertaking in terms of the GPA, it is, more importantly, a constitutional
requirement. Secondly (and perhaps the reason why the AG was anxious
to avoid mentioning that the obligation to gain the Prime Minister's
consent is a constitutional imperative), Tomana's argument
is disingenuous because it deliberately ignores the clear provisions
of section 113(5) of the Constitution to the following effect:
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