Madhuku rubbishes shallow and simplistic Magaisa

THE question, does section 96(2) of the Constitution apply to resignations of Vice-Presidents? has arisen in the following situation: After the resignation of Vice-President Kembo Mohadi, Presidential spokesperson George Charamba indicated, as a fact, that the Vice-President had handed in his written notice of resignation to President Emmerson Mnangagwa about a week earlier than the day the Vice-President publicly announced his resignation.

President Mnangagwa, despite receiving the written notice, did not give public notice of his deputy's resignation.

The first time that the public knew about the resignation of the Vice-President was when Mohadi himself made the announcement.

Some concerned citizens, on learning that the Vice-President had given written notice to the President a week earlier than his public announcement, expressed the view that the President had breached the Constitution by not giving public notice of the resignation within 24 hours as required by section 96(2) of the Constitution.

In response to questions from two journalists, on separate and unrelated occasions, I expressed the following opinion, that section 96(2) of the Constitution does not apply to the current Vice-Presidents and that the section will only apply to Vice-Presidents after the coming into force of the running mate clause.

My aforesaid opinion was widely reported and attracted various responses. One prominent response was that the opinion was a wrong reading of our law and that I had deliberately promoted that wrong view as an "enabler" to support and/or protect the President.

Former higher education minister Jonathan Moyo appeared to have led this response in his tweets.

A response of a qualitatively different type came from Alex T Magaisa. His response was not a mere tweet. In his "Saturday Big Read", he wrote an article under the title "Mohadi resignation: Did President Mnangagwa breach the Constitution?" In direct response to my opinion, Magaisa concluded as follows: "The argument that it does not apply to the current Vice-Presidents, therefore, promptly falls away".

The conclusion in the Magaisa article is the direct opposite of the opinion I expressed. Judging from the vigorous Twitter debate that followed the Magaisa article, there are now two prominent and mutually exclusive opinions on section 96(2): does it apply to current Vice-Presidents?

On March 6 2021, I responded to a tweet by Moyo in which he was accepting the opinion by Magaisa and saying: " @ProfMadhuku should be professional and admit he was wrong".

My response, was as follows: "The opinion I gave to the media, that section 96(2) of the Constitution only applies to a VP who is a running mate (and thus not applicable to current VPs) is the better view of the law. With respect, I find the article by @Wamagaisa shallow and simplistic, unless meant for Twitter".

I promised to post a detailed argument showing the scholarly basis of the opinion I hold. What follows below is the detailed argument. For the sake of completeness, I must say that the argument is extracted from a specialised article and is written for reading by both "legally trained" and "not legally trained" persons.

The argument

Every Constitution has two types of provisions, namely: express provisions and implied provisions. express provisions are those that are actually written. We all can read them. Implied provisions are not written. They cannot be seen by the ordinary eye, yet they exist. To discover implied provisions, one requires an inner legal eye.

What makes constitutional interpretation a specialist area of the law is the complex interaction between express and implied provisions.

In every situation calling for constitutional interpretation, two questions arise. What does the Constitution say and what does the Constitution mean by what it says?

The above two questions arise because a Constitution does not always mean what it says. Because of implied provisions that require an "inner legal eye", the meaning of a constitutional provision may go beyond what it says.

Put differently, we cannot resolve a constitutional issue merely by starting and ending with what a Constitution says, this much is, or ought to be, basic.

Clearly, therefore, while every person who can read the language in which a Constitution is expressed may gain useful knowledge of the Constitution, not every such person may be an expert in constitutional law.

Expertise in constitutional law requires the use of an "inner legal eye" that easily detects the many situations in which implied provisions take centre stage. How does an "inner legal eye" detect implied provisions? The answer to this question is simple.

Implied provisions come from one or more of the following: The intentions of the framers of the Constitution. The legislative history of the constitutional provisions. The purpose of the constitutional provisions.

The context in which the constitutional provisions are found in the Constitution. The relationship between the provision and other provisions. The internal logic of the Constitution as a whole. The jurisprudence developed by the courts.

Different constitutional experts may come to different conclusions about implied provisions. however, what is unacceptable is to treat the Constitution as a simple legal document that starts and ends with its express provisions: proper constitutional meaning comes from the interplay between express and implied provisions.

The general principle of law is that a provision is implied if and only if, by necessary implication, it is to be so implied.

This is at the core of law. We will return to it at the point of concluding this argument. Given the complexity of implied provisions and their centrality to constitutional jurisprudence, there is no short cut to gaining expertise in constitutional law. Having outlined the foregoing, we can easily understand section 96(2) of the Constitution.

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Lovemore Madhuku is a professor of law, faculty of law at the University of Zimbabwe