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Challenging ministers' constitutional, moral authority
Alex Magaisa
April 12, 2008

View this story on The Standard website

THE lengths to which the Zanu PF regime is going to establish whatever remains of the legitimacy of its authority over Zimbabwe are truly shocking and in many ways embarrassing.

In a piece entitled Cabinet Still Functional in The Herald of 10 April 2008, Justice Bharat Patel, the Acting Attorney-General (AAG), is reported to have given a legal opinion that the "dissolution" of the Cabinet on 27 March 2008, was no more than "administrative practice" with no effect on the tenure of its members.

This article questions both the legal and moral legitimacy of the continued authority of ministers appointed by President Robert Mugabe. I have to acknowledge that The Herald may have been selective in its representation of the AAG's opinion so that it probably omitted some of the more unfavourable and cautious advice that the honourable man may have given.

The AAG is quoted as having opined that "the reconstitution of Cabinet after its 'dissolution' is not attended by any constitutional formality and likewise the Cabinet's reconstitution may be effected by dint of administrative practice" (sic).

One can understand that Zanu PF is frantically trying to get out of the hole it dug for itself by re-asserting its authority using the State institutions.

But with respect, it is not correct to suggest that there is no formality attendant upon the "reconstitution" of the Cabinet. The Cabinet is a Constitutional body established in terms of Section 31G of the Constitution and its "reconstitution" cannot simply be reduced to the status of a mere administrative matter.

It is clearly stated that a member of the Cabinet holds office at the President's pleasure and that in terms of S. 31G (3) before taking office he has to take and subscribe an oath before the President or some other person in a form set out under Schedule 1. When he dissolved the cabinet he was exercising his (dis)pleasure, to disappoint those who were in his cabinet.

If he must re-appoint them they, surely, should go through the rigmarole of subscribing and taking the oath as required by the Constitution. But, of course, we know the embarrassment that this formal process carries under the present circumstances, hence the attempt to "reconstitute" the Cabinet "administratively" so that they can continue as if nothing has happened.

Granted the Constitution has loopholes. The AAG argues that Section 31E (2) of the Constitution states that a person may hold Ministerial office without being an MP for a period of up to three months. In fact, this does not give the full picture.

There is a proviso to that section, which states that a person may continue to hold ministerial office during the period of dissolution of Parliament until such time that Parliament first meets after that dissolution. On this generous interpretation, this suggests that the period during which a non-MP can hold Ministerial office can even be extended beyond three months if there is no Parliament due to dissolution until such time that the new Parliament first meets.

In fact, the gap is so appallingly wide that if he wanted to, President Mugabe could appoint a new set of Ministers at this stage using Section 31D. But this too would be embarrassing. That's why they would rather argue that the "dissolution" was of no effect to pretend that the old ministers are continuing in office. Why then, it must be asked, did he dissolve Cabinet if he intended that it would continue functioning after the election?

If what is being suggested were to hold, Zimbabwe may be subject to government by a whole team of unelected individuals for quite a long period. The trouble is that the commencement of the tenure of the new Parliament is heavily dependent on the result of the Presidential election. This is because Section 63(4) of the Constitution provides that the period of tenure of parliament is deemed to commence on the day the person elected as President enters office. Therefore, until such time that the result of the Presidential election is known and that person enters office there is effectively no Parliament.

I do not think Parliament intended provision for non-MPs to be appointed to the Cabinet to be used in this way except perhaps in exceptional circumstances. This may be where Parliament is dissolved during the period of a war, not where such continued dissolution is by reason of deliberate refusal to complete the electoral process. What is being proposed is a clear abuse of the Constitution.

For surely, we have here a bizarre situation in which men and women who lost (dismally) the people's mandate in the recent Parliamentary elections continue to be in charge of the country's affairs. The AAG wants to downgrade the "dissolution" of Cabinet to a purely administrative practice by distinguishing it from removal under Section 31 E
(1).

Why then, it has to be asked, should the President take the burden of ordering the "dissolution" of the Cabinet when it is not required or intended to have any legal effect? What is the purpose and effect of what is now described as an "administrative practice"? What administrative goal is intended to be achieved by doing something that is apparently not required by the Constitution? Is this not, really, the practice by which Ministerial tenure has traditionally been ended but because it does not now suit the circumstances in which Zanu PF finds itself it is conveniently relegated to an "administrative practice"?

The AAG's assertions appear to be inconsistent with certain key events showing the way these Ministers have traditionally understood to be the effect of "dissolution". Let us take the case of Aeneas Chigwedere, the erstwhile Minister of Education.

Why, it must be asked, did the Chigwedere accept appointment as Headman Mubaiwa, itself considered a public office, if indeed he was still holding public office as a Minister? Never mind the legality or moral basis of his appointment, this was surely a man who should have known that he could not hold another public office during his Ministerial tenure as Section 31D clearly states that no Minister or Deputy Minister "shall directly or indirectly hold any other public office or any paid office in the employment of any person".

How does the AAG reconcile the conduct of Chigwedere, if indeed he is still a Minister, with the argument that his Ministerial tenure still subsists? I suspect it will be stated that Chigwedere resigned his Ministerial office prior to becoming a Headman, even though it defies common sense to leave the lavish lifestyle of a Minister to take up the lesser status of Headmanship, unless of course one argues that the call of the ancestors, which Chigwedere alleged, was too powerful to resist. It is hard to overlook the unique political circumstances that Zanu PF finds itself and simply accept at face value the opinion of the AAG as reported by The Herald.

This is a party that is in serious trouble. They did things that they should not have been done and are now looking for Constitutional loopholes to legitimise authority.

One is left to wonder whether this is a case, perhaps of the emperor discovering that he really has no clothes and is, therefore, running around to gather leaves to cover his modesty.

And at the end of it all, you have to wonder, what other Constitutional loopholes and hideouts have they asked the AG's Office to look for?

Alex Magaisa is based at The University of Kent Law School and can be contacted at wamagaisa@yahoo.co.uk or a.t.magaisa@kent.ac.uk

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