Mnangagwa breached the Constitution

In the wake of a constitutional challenge to the legitimacy of the military operation that directly or indirectly brought President Emmerson Mnangagwa to power, this piece is focussed on examining the constitutional violations that seem to be haunting the new administration.

I won't dwell on the current Con Court application around the military operation, but I want to explore constitutional violations that have taken place since the President and his administration took over.

The dissolution of Mugabe's Cabinet

Soon after his inauguration, Mnangagwa issued a statement in which he ‘dissolved' Cabinet. That seems like any President's prerogative, right? Yes, but the only problem is that he dissolved an already dissolved Cabinet.

This comical mistake had no real legal effect because the Cabinet he purported to dissolve was already dissolved by the Constitution the moment he assumed office in terms of s108(1)(c) of the Constitution.

In terms of that section, the office of a minister automatically becomes vacant when a new President assumes office.

Therefore, the inauguration of the President signalled the automatic dismissal of the Mugabe's Cabinet.

The appointment of Cabinet in violation of constitutional guidelines

In selecting his Cabinet, the President must ensure that there is gender balance and the number of non-MPs must not exceed five.

In his first Cabinet appointment list, the President violated both principles.

In terms of s17 of the Constitution, there is a duty on government to have both genders equally represented in all institutions and agencies of government, which logically includes Cabinet itself.

Furthermore, s104 requires that the President be guided by regional and gender balance in choosing his Cabinet.

Arguably, this was not met in his first Cabinet announcement, but even with his subsequent changes, there is still no remarkable representation as required by the Constitution.

In terms of s104(3), the President must choose his Cabinet from elected members of the Senate and National Assembly, but he has leeway in appointing five individuals, who are not from either house for the professional skills.

The blunder the President made was to appoint more than the five in his first announcement — a flagrant violation of this constitutional provision, though later rectified.

Failure to appoint a Defence minister

Section 215 requires that there is a minister overseeing the defence portfolio arguably because it is a very important ministry.

There is currently no minister for the portfolio, though it falls under the administration of VP Constantino Chiwenga. That position is not constitutionally sound.

The Vice-President is not a minister and cannot be one either because s103 prohibits him from holding additional public offices such as being a minister.

The VP's duties can include administration of an Act or government department as per s99, but it is important to note that being assigned administration duties does not make one a Cabinet minister.

The argument that because VP Chiwenga was given administrative duties of the ministry makes him a minister, is not legally logical.

In addition to this, it is important to note that the VP took the VP's oath of office, but did not take the ministerial oath required by s104.

If the President purports to have appointed the VP as Defence minister as well, then on this ground alone, the appointment would be illegal since the prescribed oath was not taken.

The functions of ministers in terms of s104 may include the administration of duties, but this is not the only thing they do.

The full list of their duties is set out in s110(3), which lists some of them as developing, implementation of national policy, conducting government business, advising the President, preparing national legislation and directing the operations of the government.

Chiwenga is not performing these essential traits of a minister as per the Constitution, therefore, for all intents and purposes, there is no Defence minister in Zimbabwe as required by s215.

The amnesty for externalisers/looters

One of the President's first acts in office was to introduce and gazette a very bizarre amnesty in terms of the Presidential Powers (Temporary Measures) Act in terms of which the Exchange Control Act was amended.

The gazetting was done by use of Statutory Instrument 145 of 2017. This Statutory Instrument has done many things including:

1. Providing amnesty from prosecution for those who externalised money, but return such money before the lapse of the amnesty

2. It achieved this by inserting s11 of the Exchange Control Act (thereby amending it)

3. Giving the Reserve Bank governor oversight over this process and granting him powers to; do anything necessary for the efficient implementation of the Act.

While the gist of the move is noble in that it sought to recover stolen funds, it was illegally done and if one has regard to the Constitution, then those amnesty agreements are of no legal significance, because the enabling instrument violated the Constitution.

As I have argued previously, the Presidential Powers Act is no longer compatible with the Constitution in that it allows the President to make legislation.

When the Act was created in 1986, this was possible, because the President exercised legislative authority together with Parliament, but that was under the now repealed Constitution.

In terms of our current Constitution, legislative authority or the power to make law primarily vests in Parliament and not the President.

Even if we pretend that the Act is valid, there are more problems with the Statutory Instrument created. Most notably is that this Statutory Instrument purports to amend an Act of parliament by inserting a section 11 to the principal Act, The Exchange Control Act. That in itself is off.

SI's are subordinate to the principal act and cannot amend an Act of parliament logically. This SI is not primary law, it is the equivalent of regulations and are qualified as subsidiary legislation in the Constitution.

There is a legal absurdity created when parliament which has the core task of making primary law, can have its powers taken away and more so, have acts they are mandated to create, amended by what is supposed to an inferior form of legislation.

Essentially, the President has by-passed Parliament and disregarded that only it can make law in a primary sense. Not only does the President breach the values of separation of powers, he unlawfully creates law by amending a law only parliament can amend.

In addition to this, all statutory instruments must go through Parliament first for constitutional scrutiny in terms of s134(f) of the Constitution. Parliament must, therefore, give the go-ahead because it is the holder of the law-making authority in our country.

Presumably, an instrument that does not get scrutinised by parliament is ultra vires s134 and, therefore, unconstitutional. The SI did not go to parliament as envisaged by the Constitution, it was simply proclaimed into being by publication in the Government Gazette.

By not going through Parliament, the Statutory Instrument and thus the amnesty it creates, are unlawful. There is therefore, in my mind, no doubt that the amnesty when properly interpreted was issued through an invalid statutory instrument making any agreements made under it, null and void.

If government wanted to amend the Exchange Act, they should have gone through parliament, as if they were introducing a new bill (an amendment bill) and pass it as normal legislation should be passed to cure this illegality.

Lastly, another issue of concern is the interference with the function of the National Prosecuting Authority. It is important to note that in terms of s258 of the Constitution, only the National Prosecuting Authority headed by the Prosecutor General, is tasked with the determination of whether a matter must be prosecuted. Indeed, it is only the NPA that can negotiate plea bargains or guarantees from prosecution or drop a prosecution.

SI 145 of 2017 precludes the NPA from investigating and prosecuting those who comply with the amnesty. That is a regrettable, yet serious conflict of interest, because it is essentially the Executive that created that Instrument and is now dictating to the NPA (which is an independent body in terms of s260) what it can and cannot prosecute. That power does not rest with the Executive , the decision as to who should be arrested and prosecuted is meant to take place independently of the Executive but if the Executive is creating subsidiary legislation that amends primary legislation and stipulating in that same instrument, who is immune from prosecution by the NPA , then we have a constitutional crisis and an instance of interference with the functions of an independent institution of the Republic.

I am not sure who advises the President on the legal aspects of his mandate, but those individuals need to attend a basic constitutional law class to be able to accurately advise the President, because in the absence of this, the President will continue violating the Constitution …just saying.

Paul Kaseke is a legal adviser, commentator, analyst and former law lecturer with the Wits Law School & Pearson Institute of Higher Education (formerly Midrand Graduate Institute). He serves as director and current group chair of AfriConsult Firm. He writes in his personal capacity. You can give him feedback via email: feedback@paulkasekesnr.com or follow him on twitter @paulkasekesnr