'Mnangagwa, Mphoko's appointment legal'

PROSECUTOR-GENERAL Johannes Tomana yesterday said the filing of a constitutional application by the National Constitutional Assembly (NCA) led by Professor Lovemore Madhuku to stop President Robert Mugabe from appointing two Vice-Presidents was inconsequential as the Zanu-PF leader had exercised his executive authority.

Tomana, the former Attorney-General, told journalists soon after the swearing-in of Vice-Presidents Emmerson Mnangagwa and Phelekezela Mphoko together with seven ministers and a deputy minister that the attempt by Madhuku and the NCA had no basis.

"This is called an executive action. It's not subject to judiciary inquiries. Besides, it's not reading the Constitution correctly. What he (Madhuku) is saying will only happen after 2023 when the running mate issue is applicable," he said.

"The Constitution has a space for two. If you put one you comply, if you put two you comply and if you put three, you would not have complied. If something should be done and if you are late, does that mean you are not supposed to do it?"

Higher and Tertiary Education minister Oppah Muchinguri concurred with Tomana, saying what Madhuku was raising could not apply in this instance as the VP was not a running mate of the President.

Muchinguri said what happened in Zanu-PF leading to Mujuru's ouster was a party affair and decision.

Though Madhuku had said that Mugabe would be served with the papers before the swearing-in ceremony, the programme went ahead and the two were sworn in without incident.

Emerging from a closed-door meeting with Mugabe after the swearing-in ceremony at State House yesterday, Mnangagwa said he was elated and was now serving as a "bigger servant of the people".

"I have been elected to the post of VP for the Republic of Zimbabwe which means I have become a bigger servant of the people," he said.

Asked how he felt from being a prisoner during the war to be a VP, he said: "From a terrorist, a condemned prisoner to VP of the Republic of Zimbabwe. My family is here to celebrate and we are happy. I think you are also happy."

Madhuku, a University of Zimbabwe professor of law, approached the Constitutional Court challenging the appointment of the two VPs, Mnangagwa and Mphoko.
In his application which was filed yesterday afternoon, Madhuku cited Mugabe as the first respondent, Mnangagwa as second respondent and Mphoko as third respondent.

"The basis of the application is that the 1st respondent is likely to infringe two fundamental rights enshrined in the Constitution of Zimbabwe, 2013 namely (a) the right to equality before the law and equal protection and benefit of the law protected by section 56(1) and (b), the right to administrative justice protected by section 68."

"Yesterday (Thursday), the nation had three major political developments. The first was the dismissal of the former Vice-President, Honourable Joice Teurai Ropa Mujuru. She was dismissed by the 1st respondent (Mujuru).

The second was the appointment of the 2nd and 3rd respondents as Vice-Presidents of Zanu-PF. The third was an announcement that the 1st respondent intends to swear the 2nd and 3rd respondents into office as Vice-Presidents of the country. The latter ceremony appears scheduled for tomorrow (12 December 2014)," read his opposing affidavit.

Madhuku said: "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.

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 sub-paragraph (1) must appoint not more than two Vice-Presidents, who hold office at his or her pleasure'."