Bid to block Mnangagwa

Barely a day after President Robert Mugabe appointed Justice minister Emmerson Mnangagwa and career diplomat Phelekezela Mphoko as his deputies, opposition political formation NCA leader Lovemore Madhuku is seeking to overturn the move.

Madhuku, a constitutional law expert-turned politician, yesterday filed an urgent High Court application seeking an injunction to force President Mugabe to rescind his decision to appoint the two, arguing "the move is unconstitutional because the president had given an indication that he would have one deputy in this (his) term of office".

Through his lawyer, Aleck Muchadehama, Madhuku in his founding affidavit, averred that President Mugabe was likely "to infringe two fundamental rights enshrined in the Constitution of Zimbabwe which are the right to equality before the law and equal protection and benefit of the law protected by Section 56(1) and the right to administrative justice protected by Section 68".

Mnangagwa and Mphoko were cited as second and third respondents respectively.

"Yesterday (Wednesday), the nation had three major political developments. The first was the dismissal of the former vice-president,   Joice Teurai Ropa Mujuru. She was dismissed by the first respondent (President Mugabe). The second was the appointment of the second and third respondents as vice-presidents of Zanu-PF. The third was an announcement that the first respondent intends to swear the second (Mnangagwa) and third respondent (Mphoko) into office as vice-presidents of the country. The latter ceremony appears scheduled for tomorrow (today 12 December 2014)," read Madhuku's affidavit.

"The appointment of two vice-presidents to replace one vice-president is unconstitutional. It is not permitted by paragraph 14(2) of the sixth schedule to the Constitution of  Zimbabwe, 2013. The first respondent, therefore, intends to act contrary to the law, thereby infringing the rights of both the first applicant (NCA) and myself. Acting contrary to law is a direct infringement of the right to equality before the law and the equal protection of the law. For in acting contrary to the law, the first respondent is placing himself above the law. He is more equal than others. Further, the law was put in place for the benefit of all. If it is breached without a remedy for us, our right to the benefit of the law is extinguished."

Madhuku, a former constitutional reform campaigner, argued that the decision by President Mugabe to appoint one or two of the vice-presidents can only be done "immediately after the president is sworn into office".

"The option of the president to appoint one or two vice presidents is only exercised soon after the president is sworn into office. Once the president has decided to appoint one vice president, he cannot change his mind and have two vice presidents during the same term of office," he submitted.

"The president cannot replace vice-president Mujuru by two vice-presidents. This is what paragraph 14, sub-paragraph 2 of the Sixth Schedule to the Constitution says. In specific terms, it says: ‘without delay, the person elected as president in any election referred to in subparagraph (1) must appoint not more than two vice-residents, who hold office at his or her pleasure."

Madhuku further argued: "The fact that President Mugabe soon after the swearing opted to have a one vice-president (Mujuru) cannot be changed by him deciding to appoint Mnangagwa and Mphoko.

"The nation must know, right from the start, whether the president will have one or two vice-presidents. Once he makes his decision, he is not given power to change his mind during the course of his five-year term. This is perfectly sensible. The president made his decision in August 2013. He decided to have one vice-president. That is the end of the matter. He can only appoint one vice-president for his entire five-year term. The president cannot swing from one to two and back to one and then again to two and so on in one term of office. The only significance of the expression "without delay" is to force the president to make an election at the beginning of the term. Once he makes his election, he is bound for the entire duration of his five-year term."

Madhuku also stated that in terms of the law, when a vice-president is sacked he or she would have to earn a pension of life which is equal to the salary of the sitting vice-president, a scenario which means the country would have to bear the costs of paying salaries of three vice-presidents.

"Alternatively, even if the president were to have the power to change his mind, he cannot do so without explaining to the nation the reasons for having two vice-presidents when the nation has operated with one vice-president for one and half years. His explanations are required for him not to infringe the right to administrative justice protected by section 68 of the Constitution of Zimbabwe, 2013.

"Further to paragraph 19, the president is not allowed by section 68 to use purely partisan considerations to change his mind from one to two vice-presidents. It is common cause that in appointing two vice-presidents at this juncture, the first respondent is exclusively concerned with affairs of Zanu-PF," argued Madhuku.

He said citizens had a legitimate expectation that the country would continue to have one vice-president.

The High Court is yet to set the hearing date and at the time of going to print last night, the respondents were yet to file opposing papers.