Constitutional Blunders - A wishful thinking by Mr Douglas Mwonzora and Magaisa

THE PRESIDENT of Zimbabwe is said to be fond of constitutional blunders - opposition legal experts and officials have expressed worry about the incessant blunders they believe President ED Mnangagwa is constitutionally committing.

The have in vain picked up on the flimsy omissions and created mountains out of nothing. but [the president] himself is a lawyer and these things are at his finger tips".

It was the assignment of the former Army General to the portfolio of Defence which ticked both Mr Magaisa and Mr Mwonzora into massive misleading of the people. For the people who call themselves democrats the venom they applied to any person who disagrees with them is knee shaking.

Their interpretation of the constitution is flawed and they do not take lightly to any descending view. To think that they are lawyers is scaring and indeed frightening. If they become our leaders ohh God have mercy on Zimbabwe. The arrogance exhibitted and personal attacks puked is surprising. The hypocrisy is seen in the fact that they both purport to represent and advocate for a democratic change. It is clear that theirs is a fiction.

They cited how the president had appointed Chiwenga to be a minister of Defence. This is a blatant lie and showed the desperation exhibited by the two MDC senior officers.

They also cited another "supposedly constitutional blunder" recently committed by the president in his nominations.

Mr Magaisa wants the president to be up and doing.which is a good wish but highly missplaced You don't need an Attorney General to advise you on this, it is very clear and needs no comfusion around it.

Mr Magaisa stated that the ministry of Defense is the only ministry which has a specific constitutional mention that a minister for that ministry must be appointed. This is wrong and misleading. Mr Magaisa abuses his Respect and forces misinterpretations down the throat of masses. This type of interpretation is partisan misleading and depressing.

There are several ministries which the constitution directed that a minister must be appointed to be responsible for such ministry. Section 201. The constitution stated that a minister responsible for the Civil Service must be appointed. This is followed by section 215. Which is written in the same spirit. It says the President must appoint a Minister to be responsible for the defence forces.

This is the only section Magaisa plucked out and made a bible out of it. Parroted by Hon Mwonzora they the took turns to accuse the president to have acted unconstitutionally.

We must all remember that Section 220 again is written in the same spirit of section 215 so is section 228 regarding police and prisons respectively.

This is a point missed by Magaisa when he said its only section 215. Regardless your dislike of the system law demands that you respect it as it is without caking it to suit your ego.

Constitutions are not interpreted on the basis that you wrote them or you took part in its formation. All Zimbabweans were involved in this process and Magaisa must not mislead the people again by saying he authored the constitution with Mwonzora. Those who drafted it are not seized with the right to interpret it. It is patronizing to say that this constitution is my brain child so I and only I have the correct interpretation of it.

Mr Magaisa and Mwonzora in their holy understanding of the law insisted that Chiwenga was appointed minister of Defence. This assertion is misleading and not true. The vice presidents are given portfolios to administer and supervise. One wonders how the all knowing Mr Magaisa and the praise singer Mr Mwonzora missed section 104 sub section 6 which clearly stated that "Before taking office a person appointed as minister or Deputy minister must take before the president the appropriate Ministerial oath in the form set out in the Third Schedule."

The last time we checked both Dr Chiwenga and Hon Mohadi did not take as ministers. This is because they are not ministers they only handle portfolios. They were assigned tasks and not appointed to ministries.

Section 105 allows vice presidents to attend and sit in cabinet. It further gives a hint that the president has a discretion on how many ministers he can appoint. The phrase which concludes sub section 1 of section 105 is " and as such ministers as the president may appoint to the Cabinet" suggests that there is no fixed number to be appointed as ministers. It is up to the president to appoint the ministers. So this does not distinguish the ministry of Defence or Civil Servants.

The constitution only allows the President to appoint a minister responsible for that ministry. If the president invokes section 104 which says he May reserve the ministry to himself he has the right in law to reserve the ministry dealing with Civil Servants to himself.

Mr Obert Gutu the spokesperson for MDC T was on record saying the civil service has a lot of ghost workers. This was on late night politics on Star FM. Then the president heard him and took the Civil Service under his nose so that he can smell out the rot. Then Magaisa and Mwonzora cries foul. The problem we have is that friends in the opposition oppose for a living. This is not good for the nation.

The law must not be taken advantage of or abuse our reputation to confuse the electorate and cause despondence.

The assertions by Magaisa and Mwonzora are not correct. The assignment of Chiwenga to the Defense Portfolio is very constitutional and correct.

Their interpretation otherwise is motivated by opposition spirit. Lawyers must not ride on their fame but on the truth.

I fully agree with Prof Maadhuku and Learned friend Chando and the good Dr Nkululeko Sibanda that the constitution was not breached or violated by the president in assigning duties.

The president applied section 99 correctly and the picky lawyers have missed the point and ran away with the wrong cup albeit with a lot of followers.

The constitution is not left to the drafters to interpret.

it is certainly clear that the twitter by Magaisa was written with the particular intention of supporting or sprucing up a certain political/legal view. This makes the legal observations and or interpretation somehow impartial as they seek to justify the actions or inactions of a particular party, rather than objectively interpreting the law as it should be.

it has become common that law is being interpreted to suit different players' actions and/or inactions. Lawyers in the opposition seek to find ways of interpreting the law in a way that justifies their own parties' ends, whereas those in the ruling party seek to justify their party and government's actions and inactions.

Such is however the nature of legal interpretation, where each counsel has to find the legal ways to justify their client's deeds or misdeeds. This was a correct observation from counsel Chando. Firstly, section 106 is very clear in its pronouncement on VPs holding any other public office. It reads , " 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 ........the use of the word "may" should be interpreted as meaning that it is not prohibitive.

Looking at the wording of the whole section, it is clear that the wording, "may not" is to be interpreted as optional. In statutes, and sometimes in contracts, the word "may", must be read in context to determine if it means an act is optional or mandatory, as it maybe imperative. Statutes are always construed by looking at their plain meaning first, and "may not", in this case, reads as a none prohibition. Unless the constitution has a definition in the Schedule, which defines "may" differently, it is not a prohibition.

The correct interpretation of this section is that VPs, Ministers and Deputy Ministers may not be appointed into any other public office in which they would have to be sworn in, in order to take office. This means if they are sworn into these other positions, they will resultantly be earning remuneration for such public appointments, which this section prohibits.

This is the very reason why the President has not appointed them as Ministers of the relevant ministries he has assigned them to. By assigning them, the President has deliberately avoided violating section 106 of the constitution. The VPs will not be the responsible Ministers of these Ministries, but will have them under their relevant portfolios and will supervise them, including the substantive Ministers, when they are appointed. The reason they have not been appointed is to avoid the issue of swearing them in, and them earning remuneration as substantive public officers in the relevant Ministries. As it stands, the VPs will not earn any additional pay for overseeing these ministries, hence the assignment rather than appointment.

section 104 states that, "The President appoints Ministers and assigns functions to them, including the administration of any Act of Parliament or Ministry or department, but the President may reserve to himself or herself, the administration of any Act, Ministry or department."

The key word in this section is "appoint". If the President appoints anyone to be a Minister, that person will have to take an oath as a public officer and resultantly be entitled to receive remuneration for that particular office. If the person so appointed already has been appointed in another public office and has taken oath, it will be in violation of section 106.

Now if the President assigns a portfolio to any VP, Minister or Deputy Minister, there is no need for him/her to take an additional oath as it is not an appointment. There will also be no additional remuneration emanating from the execution of such assignment.

the President has not violated the constitution by assigning the Defence portfolio to VP Chiwenga. The President has acted constitutionally in his assignments.

Magaisa erroneously believes that section 215 DEMANDS THAT THE PRESIDENT SHOULD appoint a Minister of Defence. Section 215 is very clear and does not give the President an option or leeway to act differently.

 It states, "The President must appoint a Minister responsible for the Defence Forces. The key word here is "must". It compels the President to act as the section demands. This is a mandatory constitutional requirement which the President has to at one point, now or later, comply with. It does not give the President an option to abrogate. What it doesn't, however, is to give a specific time-scale within which the appointment must be made. If it was not mandatory, there would have been no need for it to be included in the constitution by the drafters. The fact that this Ministry (Defence), and the Ministry of the Civil Service (section 201), and prisons police and state security have unique constitutional provisions enshrined, means they are of vital importance in the administrative operation-ability of government which require responsible Ministers not necessarily one minister for each.

My view however on the assignment of the Defence portfolio to VP Chiwenga, is more political than it is administrative, and is politically flawed. The VP, having been the Commander of the ZDF, during the power takeover, which ushered in the incumbent President, gives the impression that it is a reward as well as it is giving too much power to the VP., which power must remain in the President himself, as Commander in Chief.

But a political miscalculation is not a constitutional breach.

Readers can read comrade Chando's un biased analysis on social media and can visit Star FM Late night Politics where the respectable lawyer Obert Gutu talks about Civil Service ghost workers and the need for the president to directly put his hands on it.

Vazet2000@yahoo.co.uk