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August: Presidential inauguration, New Constitution fully in force,
end of Inclusive Government - Bill Watch 41/2013
August 27, 2013
inauguration, New Constitution fully in force, end of Inclusive
inauguration on 22nd August
Mr Mugabe was
sworn in as President on Thursday 22nd August, at the National Sports
on Friday 6th August by MDC-T leader Morgan Tsvangirai of his election
petition challenging the Presidential election results, and the
Constitutional Court’s ruling on Tuesday 20th August that
Mugabe won the election which had taken place on 31st July.
were also recognised at the SADC Heads of State meeting in Malawi
on 17th and 18th August. [SADC communiqué from this Malawi
SADC Summit available on www.veritaszim.net
or, for those without Internet access, from firstname.lastname@example.org]
On Sunday 25th
August President Mugabe opened the Assembly of the United Nations
World Tourism Organisation being co-hosted by Zimbabwe and Zambia
at the Victoria Falls.
His next major
task as President will be the ceremonial opening of the new Parliament,
in which his party Zanu-PF won a substantial majority in the recent
Constitution completely in force from 22nd August
The new Constitution
provides that the day the President was sworn in is the “effective
date” for it to entirely replace the old Constitution [section
332 and paragraph 3(2) of the Sixth Schedule]. Therefore, it was
on 22nd August that the provisions of the new Constitution that
had not already come into operation on “publication day”,
i.e. when it was first gazetted on 22nd May, finally came into operation
[see Constitution Watch
29/2013 of 22nd May for a list of the provisions that had already
come into force]. The Act setting out the effective date of the
new Constitution also provides that those provisions of the old
Constitution that had continued in force after 22nd May stood automatically
repealed from that date.
The old Constitution
has now been totally repealed and replaced. [From now on all references
to the Constitution refer to the new Constitution unless otherwise
Government ended on 22nd August
previously holding the offices of Vice-President, Prime Minister,
Deputy Prime Minister, Minister and Deputy-Minister ceased to hold
those offices immediately President Mugabe was sworn in. They had
continued in office until that moment under a transitional provision
in the Constitution [Sixth Schedule, paragraph 15]. The final repeal
of the former Constitution removed the legal basis for the Inclusive
Government set out in Article 20 of the GPA as enshrined in Schedule
8 to the former Constitution.
of vice-presidents and ministers
or Vice-Presidents - President Mugabe must “without delay”
appoint one or two Vice-Presidents [Sixth Schedule, paragraph 14(2)].
Vice-Presidents are not “Presidents in waiting” one
of whom will automatically become President in the event of the
incumbent President dying, resigning or being removed from office.
Under paragraph 14 of the Sixth Schedule to the Constitution, which
applies if such an event occurs before the 2023 elections, the resulting
vacancy in the office of President must be filled by a nominee of
the political party under whose banner the departed President stood
for office, i.e., in President Mugabe’s case, Zanu-PF.]
deputy ministers are also appointed and assigned their functions
by the President, but the President may reserve to himself the administration
of any Act, Ministry or department. Up to five Ministers or Deputy
Ministers, chosen for their professional skills and competence,
may be appointed from outside Parliament. But all other ministers
and deputy ministers must be appointed from among Senators or members
of the National Assembly. In appointing Ministers and Deputy Ministers
the President must be “guided by considerations of regional
and gender balance” [Constitution, section 104]. There is
no limit on the number of Ministers.
Cabinet - The
President, as the “head of Cabinet”, presides over Cabinet
meetings when present; if he is absent, a Vice-President presides
[Constitution, section 105]. Vice-Presidents are automatically Cabinet
members. The President may appoint Ministers to the Cabinet, but
need not appoint every Minister. The President must “act on
the advice of the Cabinet” except when exercising functions
such as signing Bills into law; calling extraordinary sessions of
Parliament to conduct special business; making appointments which
the Constitution or legislation requires the President to make;
calling elections or referendums; deploying the Defence Forces;
conferring honours and awards; appointing Zimbabwe’s diplomatic
representatives; and recognising foreign diplomatic representatives
[Constitution sections 104, 105 and 110].
“on the advice of” the Cabinet this is not a new term
in our constitutional law, but section 339 of the Constitution helpfully
spells out what it means; in short, the President must inform the
Cabinet what he proposes, must afford the Cabinet a reasonable opportunity
to tender advice, and “is obliged to follow the advice tendered”.
The Sixth Schedule
to the Constitution also contains other provisions governing the
transition from the former Constitution.
- All existing laws continue in force, but must be construed in
conformity with the Constitution [Sixth Schedule, paragraph 10].
of existing legislation - Adaptation of former terminology to the
different terminology used in the Constitution is catered for [Sixth
Schedule, paragraph 11]. For instance, references to the House of
Assembly must now be construed as references to the National Assembly;
references to the Public Service as references to the Civil Service
and to the Public Service Commission to the Civil Service Commission;
references to the Comptroller and Auditor-General to the Auditor-General;
and references to the Attorney-General in relation to criminal proceedings
to the Prosecutor-General.
Courts and judges
- Existing courts will continue, and their judicial officers will
continue in office without any need for vetting or confirmation
[the example of the new Kenyan constitution was not followed by
COPAC]. Until 22nd May 2020 the Constitutional Court will consist
of the Chief Justice, the Deputy Chief Justice and seven other judges
of the Supreme Court under the transitional arrangements that came
into force on 22nd May this year [Constitution, Sixth Schedule,
paragraph 16]. Only in 2020, therefore, will there be a Constitutional
Court with its own judges, as envisaged by section 166 of the Constitution.
Holders of other
“public offices” - Existing holders of any public office
[defined as “a paid office in the service of the State”]
as at 22nd August continue in the equivalent offices under the same
conditions of service. This covers civil servants, members of the
police, Army and Air Force, Prison Service, etc.
- the Public
Protector [formerly the Ombudsman]. There is no Public Protector
in the Constitution, and any pending cases at the Public Protector’s
office “must be transferred to the Zimbabwe Human Rights
Commission for finalisation” [Sixth Schedule, paragraph
- the Attorney-General.
In terms of paragraph 19(2) of the Sixth Schedule, the person
holding office as Attorney-General immediately before the 22nd
August – Mr Tomana – will be the first Prosecutor-General.
There will still be an Attorney-General, who will have no responsibility
for prosecutions. Although the Constitution does not expressly
say that the same person cannot be both Prosecutor-General and
Attorney-General at the same time, it is implicit that the two
positions must be held by different people. The President can
remove the Attorney-General from office at any time and the Attorney-General
sits in both Cabinet and Parliament [sections 114 and 115]. The
Prosecutor-General is constitutionally independent and is appointed
for a fixed term of 6 years, during which he or she enjoys security
of tenure equivalent to that of a judge. i.e., is not removable
at the pleasure of the President [sections 259 and 260]. This
means that a new Attorney-General will have to be appointed to
exercise the functions of the Attorney-General under section 114
of the Constitution, Government’s principal legal adviser,
its representative in civil and constitutional proceedings and
its chief legislative drafter, and with responsibility for other
non-prosecutorial functions conferred on the Attorney-General
by Act of Parliament, such as being the official curator ad litem
[guardian of the legal interests] of persons detained under the
Mental Health Act.
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