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Mnangagwa's appointment of the Commission was not legal

by Staff Reporter
04 Sep 2018 at 12:24hrs | Views
BUREAU Veritas says President Emmerson Mnangagwa's appointment of the "Harare Massacre" Commission was not legal.

According to Veritas: Section 110(6) of the Constitution states: "In the exercise of his or her functions, the President must act on the advice of the Cabinet, except when he or she is acting in terms of subsection (2) above."  [Appointing a Commission of Inquiry does not come under subsection (2) see below.]

When the President purportedly appointed the Commission there was no Cabinet to advise him.  Only on the 30th August, shortly before he left for China, did he appoint two Vice-Presidents and by doing so formed a Cabinet of three – himself and the Vice-Presidents.  Whatever advice the now Vice-Presidents may have given him before then they could have given only as informal advisers, not as Cabinet members, because when they gave it they were not Vice-Presidents.

Although section 110(6) of the Constitution, quoted above, allows the President to act without Cabinet advice when exercising functions under subsection (2) of the section, appointing commissions of inquiry is not one of those functions.  Subsection (2)(d) mentions "making appointments which the Constitution or legislation requires the President to make", but under the Commissions of Inquiry Act the appointment of a commission is discretionary:  the President is never required to appoint one.  Hence, if he does he must act on the advice of the Cabinet.

It should be pointed out that the proclamation establishing the commission has not been published.  So legally the commission is not yet in existence, because commissions of inquiry are established "by proclamation" [section 2 of the Commissions of Inquiry Act].  If before the proclamation is published the President gets the approval of his Cabinet - and it is to be hoped that by then he will have appointed a real Cabinet, not a token one - then the commission will be properly appointed.

The importance of establishing the commission in accordance with the law cannot be over-emphasised.  Under the Commissions of Inquiry Act a commission has extensive powers of investigation:

  •     it can summon witnesses and compel them to give evidence on oath, and witnesses who fail to attend or refuse to give evidence can be punished by up to six months' imprisonment
  •     anyone who tries to disrupt the commission's proceedings can likewise be punished
  •     anyone who lies when giving evidence to the commission can be punished by up to two years' imprisonment.

If the commission is not legally established, however, it will not be able to exercise any of those powers.

If the President had consulted his lawyers, they might have prevented him from giving the impression that he had already established the commission when legally he could not have done so.

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