Opinion / Columnist
Tsvangirai remains constitutionally protected in the transitional period
16 May 2013 at 13:04hrs | Views
An article on page 2 of The Herald newspaper today mischievously and erroneously suggests that there is uncertainty over the future of the Office of the Prime Minister (OPM). Entitled, "Uncertainty hangs over Tsvangirai's political status", the article gives the impression that the adoption of the new Constitution will spell the end of the OPM and that Prime Minister Tsvangirai will only serve at the pleasure of President Mugabe.
The content and message in this article is incorrect. Either the reporters are being deliberately selective in reading the new Constitution or they have simply failed to read and interpret the new Constitution. Ignorance can be forgiven and corrected but deliberate distortion of the law and facts is unacceptable. The Constitution's provisions are very clear on this issue, as will be explained below.
When a Constitution is crafted, there is always a part that deals with the transitional issues; that is, a part that deals with what happens between the repeal of the old Constitution and the effective date of the new Constitution. In most cases, as is the case with our new Constitution, the operation of some provisions of the Constitution may be delayed to a later date, while some provisions of the old Constitution may be allowed to continue for a certain period of time.
The object of savings and transitional provisions is to cover any gaps or inconsistencies that may arise in the transitional period. For example, generally there is a section in the transitional and savings provisions, which provides for the continuation of laws passed prior to the adoption of the new Constitution and that these existing laws must be construed in accordance with the new Constitution.
Such a provision "saves" existing laws but makes them subject to the terms of the new Constitution. If such a provision did not exist there would be a real risk of creating a dangerous vacuum if all existing laws were immediately rendered null and void.
In regard to the new Constitution, the transitional provisions are in Part 4 of the Sixth Schedule. It is in this part that the fate of the OPM is dealt with. Section 15 of the Sixth Schedule provides for the continuation of the President's Office, the OPM and Cabinet until the effective date which is the date when a newly elected President assumes office following elections under the new Constitution.
For the avoidance of any doubt, s. 15 specifically provides that "the persons who held those[Executive] offices remain in them accordingly". The meaning of this provision is that until the day a new President assumes office after the next election, Prime Minister Tsvangirai, alongside President Mugabe, their deputies and Cabinet ministers will remain in office.
The effect of this provision is two-fold in that not only does it protect the stated executive offices but in addition, it also ring-fences the position of the actual persons who hold those offices. These provisions were designed to save the GPA-created governmental structure until at least the legitimate election of a new President. With the continuation of these offices comes the executive authority and attendant functions which they carry as provided for under the GPA.
The possibility that someone might want to use the new Constitution to disregard the GPA and the governmental structure created under its terms was foreseen by the crafters of the new Constitution and this provision was designed to prevent that risk.
It was crafted against the background of realisation of the specific character of the Zimbabwean political landscape, the origins and purpose of the GPA and the existing governmental structure. It was never the intention to scuttle the GPA and its specially-designed the governmental structure before the completion of its full term as intended by the parties and the guarantors at SADC and the AU.
The expectation is that that term would expire after a successful election which produces a legitimate result.
It is therefore blatantly false and malicious to suggest, as The Herald does, that "uncertainty hangs over Tsvangirai's political status" under the new Constitution. His position, as is the position of other executive offices, is protected under the transitional provisions of the new Constitution.
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Dr Alex Magaisa is Political Advisor to Prime Minister Morgan Tsvangirai
The content and message in this article is incorrect. Either the reporters are being deliberately selective in reading the new Constitution or they have simply failed to read and interpret the new Constitution. Ignorance can be forgiven and corrected but deliberate distortion of the law and facts is unacceptable. The Constitution's provisions are very clear on this issue, as will be explained below.
When a Constitution is crafted, there is always a part that deals with the transitional issues; that is, a part that deals with what happens between the repeal of the old Constitution and the effective date of the new Constitution. In most cases, as is the case with our new Constitution, the operation of some provisions of the Constitution may be delayed to a later date, while some provisions of the old Constitution may be allowed to continue for a certain period of time.
The object of savings and transitional provisions is to cover any gaps or inconsistencies that may arise in the transitional period. For example, generally there is a section in the transitional and savings provisions, which provides for the continuation of laws passed prior to the adoption of the new Constitution and that these existing laws must be construed in accordance with the new Constitution.
Such a provision "saves" existing laws but makes them subject to the terms of the new Constitution. If such a provision did not exist there would be a real risk of creating a dangerous vacuum if all existing laws were immediately rendered null and void.
In regard to the new Constitution, the transitional provisions are in Part 4 of the Sixth Schedule. It is in this part that the fate of the OPM is dealt with. Section 15 of the Sixth Schedule provides for the continuation of the President's Office, the OPM and Cabinet until the effective date which is the date when a newly elected President assumes office following elections under the new Constitution.
The effect of this provision is two-fold in that not only does it protect the stated executive offices but in addition, it also ring-fences the position of the actual persons who hold those offices. These provisions were designed to save the GPA-created governmental structure until at least the legitimate election of a new President. With the continuation of these offices comes the executive authority and attendant functions which they carry as provided for under the GPA.
The possibility that someone might want to use the new Constitution to disregard the GPA and the governmental structure created under its terms was foreseen by the crafters of the new Constitution and this provision was designed to prevent that risk.
It was crafted against the background of realisation of the specific character of the Zimbabwean political landscape, the origins and purpose of the GPA and the existing governmental structure. It was never the intention to scuttle the GPA and its specially-designed the governmental structure before the completion of its full term as intended by the parties and the guarantors at SADC and the AU.
The expectation is that that term would expire after a successful election which produces a legitimate result.
It is therefore blatantly false and malicious to suggest, as The Herald does, that "uncertainty hangs over Tsvangirai's political status" under the new Constitution. His position, as is the position of other executive offices, is protected under the transitional provisions of the new Constitution.
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Dr Alex Magaisa is Political Advisor to Prime Minister Morgan Tsvangirai
Source - Dr Alex Magaisa
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