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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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