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Uncertainty over key appointments continues - Bill Watch 6/2012
Veritas
February 20, 2012

Both Houses are adjourned until Tuesday 28th February 2012

Third Anniversary of Inclusive Government

This week saw the third anniversary of the commencement of the Inclusive Government in 2009 [the Prime Minister and Deputy Prime Ministers were sworn in on 11th February 2009 and most other Ministers on 13th February.] The anniversary comes at a time when the inclusive government is under great strain and President Zuma is expected to visit Harare to tackle the lack of progress on GPA implementation with the GPA party principals. Despite repeated announcements of agreements reached to settle outstanding issues, most in fact remain unresolved. A repeated bone of contention between the President and the MDCs has been the President’s unilateral appointment of key office-holders which, according to the GPA [and included in the Constitution], should be done in consultation with the Prime Minister. This issue came to a head again when the Police Commissioner-General’s term of office expired on 31st January 2012.

Commissioner-General of Police

Current position

Mr Chihuri is carrying out the functions of Commissioner-General of Police. Still in dispute are whether he is doing so in an acting capacity or as substantive Commissioner-General, and what is the legal and constitutional basis, if any, of his tenure.

Series of contradictory statements

From 2 MDC Principals On Wednesday 8th February the Prime Minister and Deputy Prime Minister held a press conference – albeit at the Prime Minister’s residence – at which they announced that all principals had agreed that Mr Chihuri was acting until a substantive appointment was made – and that this would be done by the President with the agreement of the Prime Minister.

The Prime Minister’s spokesman issued a statement after the conference: “The current position is that the office is vacant and Commissioner Chihuri is serving in an acting capacity.” The statement also said that there had been agreement reached that the Police Service Commission must be regularised so that it makes recommendations of potential candidates to the President, and then there would be consultation and agreement on the appointment with the Prime Minister.

[Comment: Neither the Constitution nor the Police Act requires input from the Police Service Commission as such. The Constitution does, however, require consultation with a special ad hoc board of which the ex officio chairperson of the Police Service Commission is a member – as well as the agreement of the Prime Minister. There has been no suggestion that such a board has been constituted or involved in recent events.]

Rebuttal by President’s spokesman

The next day, Mr Charamba announced that Mr Chihuri had been re-appointed as substantive Commissioner-General, in accordance with the Constitution, on the written recommendation of the Police Service Commission [which he said was operational] and that his contract had been renewed when it was due until 2014. He insisted the Prime Minister and Deputy Prime Minister had been told at their meeting with the President that neither of them had any right to be consulted on the matter.

Countered by the Prime Minister and the Deputy Prime Minister Both, as principals, stuck to what they had said previously; and the Deputy Prime Minister added: “We have documented records of our meeting of principals done by the Chief Secretary to the Cabinet”.

To be further discussed at President PM Meeting

On Saturday the Prime Minister said that nothing had changed: Mr Chihuri was merely Acting Commissioner-General. He said he would raise the matter with the President at the next principals’ meeting on Monday.

Meeting cancelled

On Monday, however, the principals’ meeting was cancelled. The reason given was that a progress report on the constitution-making process from the COPAC management committee was to have been discussed and the report was not yet ready.

Meeting Monday 20th February

Press reports indicate this principals’ meeting, too, may be aborted as the COPAC report may still not be ready. [Why the whole agenda of a regular Monday meeting of principals, including the important matter of the Police Commissioner-General’s appointment, should be cancelled because of COPAC is not clear.]

The issue is now further clouded by press reports claiming:

That the co-Ministers of Home Affairs had not signed a letter agreeing to Mr Chihuri’s appointment/extension. [Comment: Ministerial agreement is not legally necessary, although normally the necessary paper work would be originated in the Ministry and then passed on to the President’s Office for signature.]

That the Police Service Commission could not have been consulted about Mr Chihuri’s appointment/extension as Mr Charamba claimed because, all the appointed members went out of office late last year. [Comment: This is in fact a peripheral issue, because neither the Constitution nor the Police Act calls for the Police Service Commission as such to be involved in either an appointment or an extension. But as there has been no gazetting of fresh Police Service Commission appointments, it is not surprising that Mr Charamba’s statement about the Commission has been questioned.]

What Could Prevent such Confusion

• It would have saved a lot of obfuscation and contradictory statements if after the meeting of the three principals an agreed joint statement signed by all three had been issued. This procedure should be laid down and followed in future, instead of one party or the other making unilateral announcements.
• Whenever appointments are made to key posts, and whenever members are appointed to service commissions or other constitutional and statutory commissions, boards etc., official notices should be gazetted promptly. Such notices should cite the constitutional and/or statutory enabling provisions, name the appointees and specify their terms of office. That may avoid the sort of confusion over facts and law that has hampered discussion of the present issue.

Of Note: Position of Other Service Chiefs

When speaking to the press on 9th February Presidential spokesman Charamba also said that the President had, in terms of the Constitution, extended the terms of office of the Commander of the Defence Forces and the Commanders of the Army and Air Force. He said the length of the extensions would be announced later.

In fact, the Defence Act [sections 8 and 11] says that Commanders must be appointed for “a period of four years or shorter period as the President may determine”. There is no prohibition of reappointment, but, unlike the Police Act, the Defence Act has no provision for an “extension”. So any extension can only be achieved by a fresh appointment – which is obviously a “key appointment” that requires the prior consent of the Prime Minister in terms of Schedule 8, Article 20.1.3(p) to the Constitution [see Bill Watch 4/2012]. The Constitution [section 96(4)] also requires the President, before making an appointment, to consult “with such person or authority as may be prescribed by or under an Act of Parliament” and the Defence Act states that the person to be consulted is the Minister of Defence, who must in turn be advised by a board. The Defence Forces Service Commission as such plays no part in the appointment process, although its chairperson is an ex officio member of the Minister’s advisory board.

Comment: These “extensions”, too, can be expected to provoke an interparty row. The President did not get the Prime Minister’s prior consent. And Mr Charamba is reported to have claimed consultation with the relevant Service Commissions, not the Ministers and ad hoc boards mentioned in the relevant Acts as having to be consulted.

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