Mnangagwa very much on point, Chiwenga's assignment constitutional

In recent days, there has been renewed interest in the proper use and possible abuse of executive orders and other presidential assignments. Many citizens and lawmakers expressed concern over the content and scope of several of President Munangagwa's appointments and assignments. In particular President's Mnangagwa's decision to assign his deputy Constantino Chiwenga the defence portfolio has been described as a violation of the constitution by the opposition cry-babies and some so called legal experts.

Despite the increased public attention focused on executive orders and similar directives, public understanding regarding the Legal foundation and proper uses of such presidential appointments is limited. Thus, the increased public attention generally has been accompanied by confusion and occasional misunderstandings regarding the legality and appropriateness of various presidential actions. The constitution provides a general overview of the President's use of executive directives.

Mr Magaisa and Mr Douglas Mwonzora all of the MDC T have tried on the social media to mislead the people and indeed to vilify the president in his work. The deliberate misleading by both and all can either be attributed to misunderstanding of the constitution or shear malice and mischief.

The detractors have started by saying Vice Presidents are prohibited by the constitution to hold any other public office. This is not true as the constitution does not prohibit vice presidents from holding public offices. Section 106 sub section (2) of the Zimbabwean Constitution states that "Vice Presidents, Ministers and Deputy Ministers MAY NOT during their tenure of office

a) Directly or indirectly hold any other public office or undertake any other paid work.
The reader must note the use of the word MAY. This means that the Act is not prohibitive, it may and it may not. So there is no outright prohibition of the Vice presidents to hold ministerial positions. This then exposes Magaisa in his crusade to tarnish the image of the president of Zimbabwe and that of the Vice President.
Further to the constitution section 104 states clearly that ministers are appointed, in this case the president did not appoint Chiwenga as a minister of defence but assigned him to administer that ministry. There is a difference between assignment and appointment. Chiwenga was given powers to supervise the portfolio and was not appointed as a minister in that ministry.

Section 99 of the constitution clearly tabulates the functions of the Vice President. Which is to, "assist the president in the discharge of his or her functions, and perform any other functions including the administration of any Ministry, department or Act of Parliament, that the President may assign to them."

Please not the use of the words ANY MINISTRY in section 99. So there is no ministry which is sacred and which cannot not be assigned to a Vice President or any other person at the pleasure of the president. The contention by the MDC through Mwonzora that the actions of the president were unconstitutional is indeed vexatious and embarrassing. 

the statement by the chief secretary clearly cited section 99 which is proper and correct, the president assigned and did not appoint. it is therefore wrong to say that Chiwenga was appointed minister, he was simply assigned to administer the ministry, meaning if there is the minister Chiwenga is overall in charge of that minister and his actions. That is hitting the ground running, apportioning responsibility to people.
It should be noted that the Ministry of defence has a great function of defending Zimbabwe's independence, sovereignty, territorial integrity and national interests. it must participate in the creation of common regional security and architecture, contribute to the maintenance of international peace and stability. This ministry oversees the military which like that of any democratic country is one of the elements identifying national values and security interest and as such must complement and not conflict with political, economic, social, demographic and informational elements of national power.

The cabinet of Zimbabwe is an executive body of appointed government ministers; this is headed by the president. The president has every right under the law to choose who should be part of the cabinet.

Magaisa erroneously believed that section 215 DEMANDS THE PRESIDENT TO appoint a minister of defence. While the president has the powers to appoint ministers the constitution allows him to assume the administration of those ministries and keep them to himself.

Magaisa forgot to read section 104 which says" The president appoints Ministers and assigns functions to them including the administration of any Act of Parliament or of any Ministry or department, but the President MAY RESERVE TO HIMSELF THE ADMINISTRATION of an Act, Ministry or department." Note that there is no special attention given to any ministry but the president may reserve to himself or his vice president the administration of any ministry.

So section 215 is not a mandatory provision and must not be taken in isolation. The opposition is sworn to oppose anything but this time Munangagwa was on point and acted constitutionally.

THE SEPARATION OF POWERS
One of the great and enduring gifts from the liberation was the inclusion of separation of power principles in the Constitution. The Framers had studied the writings of Montesquieu and other political philosophers as well as the workings of the separate branches of the other governments. Their conscious design to enforce this separation of functions was carefully explained in COPAC. The separation of powers is now enshrined in both the structure of the Constitution and various explicit provisions of Articles.
Yet, in the previous Administration, a baser motive seemed to prevail in the use of executive power where the executive repeatedly flaunted his executive order power to curry favour with narrow or partisan special interests.

A President who abuses his executive order authority undermines the constitutional separation of powers and may even violate it. History will show that President did not abuse his authority in a variety of ways and that his respect for the rule of law is unprecedented. Given this pattern, no one should be surprised that President Munangagwa is on point and only the wishful thinking of the opposition seeks to demonise his effort. But it would be a mistake to try to restrict a President's lawful and proper executive order authority because of one abusive opposition legal mind.

Moreover, defenders of executive authority will find much in President's use of executive orders and proclamations that is instructive--even if they dispute the political intelligence in doing so. In short, some helpful lessons can be learned from recent experience about how an aggressive President can use his power for appropriate and beneficial purposes, and these lessons can help guide the current and future Presidents of Zimbabwe in making executive decisions.

In the end, the constitutional separation of powers supports both sides of the argument over a President's proper authority. It reinforces a President's right or duty to issue a decree, order, or proclamation to carry out a particular power that truly is committed to his discretion by the Constitution or by a lawful statute.

Thus, no simple recitation of governing law or prudential guidelines is possible. However, History and practice are useful tools in understanding the President's authority, and a Legal framework of analysis exists to help determine issues of validity. Beyond questions of legality, there are many separate but important issues of policy. Two broad policy questions present themselves: (1) whether a given power the President possesses ought to be used to the best interest of the nation, and advance a particular policy objective, and (2) whether a particular draft directive effectively advances such a policy goal.

Authority for these directives must come from either the Constitution or statutory delegations.
If the President's authority is implied or inherent in a statutory grant of power, Parliament remains free to negate or modify the underlying authority. Parliament also has some latitude in defining or refining the procedures the President must take in the exercise of that authority, although there are some constitutional limits to the powers to micromanage executive branch decision-making procedures.

When the President is lawfully exercising one of these functions the scope of his power to issue written directives is exceedingly broad. In short, he may issue or execute whatever written directives, orders, guidelines communiqués, dispatches, or other instructions he deems appropriate.

The President also may issue directives in the exercise of his statutorily delegated authority, unless Constitution has specified in law that the statutory power may be exercised only in a particular way. In sum, a President has broad discretion to use written directives when he is lawfully exercising one of his constitutional or statutorily delegated powers. Any broad power or discretion can be abused, but it would be wrong to confuse such potential or real abuse with the many legitimate uses.
A proper understanding of a President's power to assign and appoint officers or ministers will enable him to use this power confidently in the exercise of his constitutional responsibilities and to implement important Administration policies. An aggressive use of this power is necessary for a modern President to project strength as he manages the country.

Section 201 of the constitution talks about the appointment OF a MINISTER Responsible for Civil Service it does not say that another minister in another department cannot be in charge.In short Magaisa and     Mwonzora got it very wrong and have tried to demonise the President. The argument by both men is meant to disrespect Vice President Chiwenga.

Vazet2000@yahoo.co.uk