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MoU Dialogue delays Parliament - Bill Watch 30/2008
Veritas
July 26, 2008

Opening of Parliament further delayed

The Inter-Party Memorandum of Understanding [MoU] signed on 21st July states: “The Parties shall not, during the subsistence of the Dialogue, take any decisions or measures that have a bearing on the agenda of the Dialogue, save by consensus. Such decisions or measures include, but are not limited to the convening of Parliament or the formation of a new government.” [Paragraph 9: Decisions by the Parties]

Note: The MoU requires the Dialogue between the parties to be completed by 4th August. “The Dialogue commenced on 10 July 2008 and will continue until the Parties have finalised all necessary matters, save for short breaks that may be agreed upon for purposes of consultation. It is envisaged that the Dialogue will be completed within a period of two weeks from the date of signing of this MoU. [Paragraph 6: Time frames]

This means that, irrespective of the Constitutional requirements [Parliament should have met by 15th July], there is obviously going to be a further delay in the opening of Parliament. This has been confirmed by Parliament.

Possibility of Constitutional Amendment

If the MoU talks result in an agreement on changes in governance [e.g. the creation of a Prime Minister, change in Presidential executive powers, additional seats in Parliament, etc.] there would have to be a Constitutional amendment. This would be amendment 19.

It is noteworthy that in Kenya earlier this year the inter-party agreement to resolve the post-election crisis resulted in an agreed Constitutional Amendment and a National Accord and Reconciliation Act enshrining the terms of the agreement and providing for the office and powers of a Prime Minister.

Would a Constitutional Amendment affect when Parliament reopens?

Under our Constitution, a Constitution Amendment Bill must be published in the Government Gazette at least 30 days before its introduction into Parliament [Constitution, section 52(2)].

If there is to be a Constitutional Amendment, this raises the question of whether this would result in an even further postponement of Parliament.

The options would be to:

• Ignore the 30 day Constitutional provision – very improbable as this could lead to court challenges on legitimacy of any government business pursuant to such a fast tracked amendment
• Delay the opening of Parliament until 30 days have elapsed and the Bill can be dealt with – but Constitutionally Parliament should have opened on 15th July.
• Open Parliament for other business while waiting for the 30 days to elapse. This seems to be the most likely scenario – but current Ministers who failed to win Parliamentary seats in the recent elections could not continue to hold office after the first meeting of Parliament [see below].

Appointment of Ministers

At the moment Ministers have continued in office. Mr Mugabe's long-standing practice has been to announce new Ministerial and Cabinet appointments immediately after every re-election as President. However, it is now clear from the MoU [see paragraph 9, quoted above] that no appointments will be made except in accordance with consensus reached in the Dialogue.

As the preamble to the MoU refers to the need for the parties to work together in an "inclusive government", it is likely that in an inclusive, power sharing government there will be some sort of agreed distribution among the parties of Ministerial and Cabinet posts. Under the present Constitution, and until a Constitutional Amendment is passed which may change the situation, a Ministers must already have a Parliamentary seat or be one of the 5 Senate appointees, or acquire a seat within 3 months. Seats would become vacant if elected members of Parliament are chosen as Speaker of the House of Assembly and President of the Senate, or are appointed as Provincial Governors, or die, resign or are expelled [for non-attendance or conviction of serious crime]. These vacancies would have to be filled by by-election, not appointment, and by-elections take time [at least 2 weeks from proclamation if uncontested and 6 weeks if contested].

ZANU PF nominees who did not get elected [see end of Bill Watch for details] and also any new MDC Ministers not already in Parliament would have to be accommodated. MDC Tsvangirai’s likely nominees for ministerial posts already have seats. [Note: if Mr Tsvangirai were to become Prime Minister, he would have to get a seat in the House of Assembly not the Senate.] None of the MDC Mutambara executive won seats, so if any of them are to become Ministers, seats would have to be found for them. If available seats are insufficient to meet immediate needs, one solution would be to increase the number of appointed seats – which would require a Constitutional amendment.

Who will appoint Ministers and Cabinet?

The MoU does not in fact acknowledge the recent swearing in of the President, and the signatories to the MOU were Mr Mugabe in his role of President of ZANU PF and Mr Tsvangirai and Mr Mutambara in their roles as Presidents of the two MDCs. It is not clear how the issue of Presidential legitimacy will be handled, but it is likely that the agenda item “framework of government’” will include redefining of Presidential executive power, whether or not there will be a Prime Minister and how Ministers and Cabinet will be appointed.

Note: Under the original Lancaster House version of the Constitution [1980], Zimbabwe had a Prime Ministerial system in which the President was titular Head of State but real executive power was vested in the Prime Minister. Ministers were formally appointed by the President who was obliged to act on the advice of the Prime Minister. Parliament was summoned and dissolved on the advice of the Prime Minister. [The present Executive Presidency was introduced by Constitution Amendment No. 7 in late 1987.]

If there is to be a Prime Minister advising the President on appointments, then the Constitution would have to be amended accordingly. In the meantime if Parliament reopens presumably Ministers will be appointed by President Mugabe, but following the terms laid down in the negotiated agreement.

Appointment of Vice-Presidents

Like Ministers, Vice-Presidents are appointed by the President. The current Vice-Presidents have continued in office, but as a Vice-President also has to be a member of Parliament, one current Vice-President who did not win a seat in the elections, will lose his post unless a seat is found for him. If there were to be an increase in the number of Vice-Presidents, or the office were to be abolished or the roles changed, this would require an amendment to the Constitution. [Note: when Zimbabwe had a Prime Minister and “non-executive” President there were no Vice-Presidents.]

Appointment of Provincial Governors

The ten Provincial Governors are appointed by the President in terms of the Provincial Councils and Administration Act and can be removed from office at any time. The terms of office of the current provincial governors are due to expire on 31st July 2008. It seems likely that new appointments will be delayed until after the MoU talks. As Provincial Governors are ex officio members of the Senate [Constitution, section 34(1)(b)], in a power sharing agreement these posts also may be divided up between parties.

Position of Heads of Uniformed Forces

Although the heads of the uniformed forces are appointed by the President under the Constitution, the Constitution is in fact silent on their removal from office before expiry of their appointed term. The terms and conditions of their contracts are not matters of public record.

Vice President and Ministers who did not get re-elected

Once Parliament opens the Vice-President and 10 current ZANU Ministers [see list below] who did not win Parliamentary seats in the recent elections cannot continue to hold office unless they have by then become members of Parliament [they have all completed 3 months without being members of Parliament]. [Constitution, section 31E(2)): "No person shall hold office as Vice-President, Minister or Deputy Minister for longer than three months unless he is a member of Parliament: Provided that [i.e. Except that] if during that period Parliament is dissolved, he may continue to hold such office without being a member of Parliament until Parliament first meets after the dissolution.]

Vice-President: Joseph Msika

Ministers: Patrick Chinamasa [Justice, Legal and Parliamentary Affairs], Samuel Mumbengegwi [Finance], Aeneas Chigwedere [Education, Sport and Culture], Amos Midzi [Mines and Mining Development], Mike Nyambuya [Energy and Power Development], Joseph Made [Agricultural Mechanisation and Engineering], Munacho Mutezo [Water Resources and Infrastructural Development], Sikhanyiso Ndlovu [Information and Publicity], Chris Mushowe [Transport and Communications], Oppah Muchinguri [Women Affairs, Gender and Community Development] and Rugare Gumbo [Agriculture].

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