Opinion / Columnist
Mnangagwa action undermines parliamentary independence
6 hrs ago | Views
On the 9th July 2025 President Emmerson Mnangagwa received some praises from an opposition leader and the government spokesperson Nick Mangwana for attending a sitting of the National Assembly unannounced.
The Speaker of the National Assembly Jacob Mudenda explained and justified the visit as follows: "In terms of our Constitution, Your Excellency, the President, is part of the Legislature. So, he has every right to come in and sit and follow proceedings accordingly".
He continued: "There is also another reason why His Excellency was around, and he was looking at certain aspects of our Parliament building vis-à-vis future developments".
Nick Mangwana said the President by this act "led by example" and ‘being Head of State makes him head of all three arms of the State".
Charlton Hwende of the Citizens' Coalition for Change (CCC) said "Mugabe never attended Parliament outside the official opening ceremonies. This is the third time that President ED has come to Parliament outside the official opening ceremonies. Next time we must have the President during questioning time responding to our questions".
All these comments and praises were misplaced and premised on misconceptions, clapping hands for a constitutional breach. Let us address these.
Is the President the Head of the Executive, Judiciary and Legislature?
Let's start with assisting Nick Mangwana: the President is not the head of the Executive, Legislature and Judiciary, what he calls the "three arms of the State".
The President is just the head of the Executive.
The Legislature and the Judiciary are equal branches of government to the Executive. The Legislature has no defined head, but the Speaker of the National Assembly is the head of Parliament (see section 135 of the Constitution).
The head of the Judiciary is the Chief Justice.
The President has two roles; he is Head of Government, and he is Head of State.
These are two distinct roles with different powers and constraints.
Head of Government means head of the Executive, not head of the other two branches too.
The Head of State role on the other hand, though distinct, does not confer upon the President the role of head of the other arms of government.
It is a role with specific functions and it not carte blanche, although our Constitution when defining "Executive Functions" (see Part 4 of Chapter 5) does not delineate separate sections to separate which powers are Head of Government and which one are Head of State.
But both constitutional theory and traditions have established approaches that make clear the distinction between the two.
Examples of Head of State roles include being Commander-in-Chief of the defence forces, and the powers of amnesty and pardon. In some countries and constitutional frameworks, the Head of State and the Head of Government are two different persons; in Zimbabwe it is the same person.
Though Head of State powers straddle across many and multiple aspects of governance in Zimbabwe, those powers have more constraining parameters than the Head of Government powers where the President has more prerogative and legroom.
It is expected that government officials understand all this.
Is the President a Member of Parliament?
To the Speaker of the National Assembly and some opposition leaders: the President is not a Member of Parliament; instead, he is a member of the Legislature, thus cannot just attend and sit in Parliament willy-nilly.
Read sections 116 and 118 of the Constitution.
He is not a member of either the National Assembly or the Senate.
The Legislature consists of Parliament and the President acting in terms of the Constitution.
So, the Legislature and Parliament, under our constitutional framework, do not mean the same thing.
Jacob Mudenda conflated the two and even then, did not realise he needed to also see the substantive sections that address the President's interaction with Parliament.
In fact, the roles of the Legislature and the roles of Parliament are different.
See sections 117 and 119.
The President's legislative role is limited to law-making, as he assents to all laws made by Parliament, and he has certain powers – including but not limited to sending back to Parliament and refusing to assent to new laws.
Can the President attend Parliament?
To the Speaker of the National Assembly and some opposition leaders: yes, the President may attend Parliament but only for specific reasons and in specific circumstances.
Mnangagwa's visit on 9th July does not meet one of those reasons or circumstances. There is no allowance in the Constitution for the President to just pitch up unannounced and occupy a seat of a Member of Parliament in the chamber simply because he is a member of the Legislature.
Section 140 of the Constitution regulates the President's attendance and addresses to Parliament.
The Speaker of the National Assembly seems oblivious to the import of this provision, as evidenced by his omission to reference it, choosing to mention (and wrongly so) section 116.
The President may attend only for the following purposes: to address either House of Parliament (not to sit, watch and listen) – and here he can invite himself and summon Parliament to meet (see also sections 110(2)(c)) and 146(a)); to answer questions on any issue per the Standing Rules and Orders of Parliament (not just to sit, watch and listen) – and here he must be invited. Charlton Hwende may cause Parliament to invite the President for this specific purpose.
It is also a constitutional requirement that the President must address a joint sitting of both Houses at least once a year.
All the above is notwithstanding that "the fact that a person who was not entitled to do so sat and voted in the Senate or the National Assembly or otherwise took part in the proceedings of the Senate or the National Assembly does not invalidate the proceedings", per section 124(2) of the Constitution.
Why is the President not a Member of Parliament and why can he not just attend and sit at will?
We have established that being a Member of Parliament and of the Legislature are two distinct things. Our Constitution has as both a founding value and principle, and a basic structure element, the separation of powers and limited government. This means we have three separate and equal branches of government which must provide checks and balances on each other, and each must maintain its constitutional and operational independence. This is how the design must work.
If the President can just attend and sit in Parliament at will, how do we guarantee that it does not influence what the Speaker and the Members of Parliament do? Jacob Mudenda's wrong legal justification, and an additional explanation about the President inspecting the building simply cannot land. It starts with these seemingly innocent and benign unannounced visits, and then certain unconstitutional conventions will be set. The President does not supervise and cannot do random checks on Parliament. He can do that to government ministries if he wants, for that is where he supervises.
If the President can just pitch up and sit in Parliament to "follow proceedings", what stops him from tomorrow pitching up in the courts to "follow proceedings", especially in matters in which he is not a party? If he does that, what does it do to the presiding officers and every other actor in that courtroom? One will want to argue that he is a citizen and is entitled like any other citizen to sit in court proceedings. But the reality is he is no ordinary citizen. He is the Head of State and Government. Judicial and parliamentary interference can and does happen in seemingly benign and innocent ways, not just in overt and egregious ways.
Yet that still is all interference.
Now, because in Zimbabwe we are way off the mark and we now do way more than subtle Executive interference in the work of both the Judiciary and Parliament, this issue I address here may be taken as light and as a non-issue by some.
The context makes me understand that. Still, we are duty bound to make it known that the President's unannounced and self-invited attendance to a session of any House of Parliament to sit in the seat of a member and "follow proceedings" breaches and undermines parliamentary independence.
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Dr Musa Kika is a constitutional and human rights lawyer.
The Speaker of the National Assembly Jacob Mudenda explained and justified the visit as follows: "In terms of our Constitution, Your Excellency, the President, is part of the Legislature. So, he has every right to come in and sit and follow proceedings accordingly".
He continued: "There is also another reason why His Excellency was around, and he was looking at certain aspects of our Parliament building vis-à-vis future developments".
Nick Mangwana said the President by this act "led by example" and ‘being Head of State makes him head of all three arms of the State".
Charlton Hwende of the Citizens' Coalition for Change (CCC) said "Mugabe never attended Parliament outside the official opening ceremonies. This is the third time that President ED has come to Parliament outside the official opening ceremonies. Next time we must have the President during questioning time responding to our questions".
All these comments and praises were misplaced and premised on misconceptions, clapping hands for a constitutional breach. Let us address these.
Is the President the Head of the Executive, Judiciary and Legislature?
Let's start with assisting Nick Mangwana: the President is not the head of the Executive, Legislature and Judiciary, what he calls the "three arms of the State".
The President is just the head of the Executive.
The Legislature and the Judiciary are equal branches of government to the Executive. The Legislature has no defined head, but the Speaker of the National Assembly is the head of Parliament (see section 135 of the Constitution).
The head of the Judiciary is the Chief Justice.
The President has two roles; he is Head of Government, and he is Head of State.
These are two distinct roles with different powers and constraints.
Head of Government means head of the Executive, not head of the other two branches too.
The Head of State role on the other hand, though distinct, does not confer upon the President the role of head of the other arms of government.
It is a role with specific functions and it not carte blanche, although our Constitution when defining "Executive Functions" (see Part 4 of Chapter 5) does not delineate separate sections to separate which powers are Head of Government and which one are Head of State.
But both constitutional theory and traditions have established approaches that make clear the distinction between the two.
Examples of Head of State roles include being Commander-in-Chief of the defence forces, and the powers of amnesty and pardon. In some countries and constitutional frameworks, the Head of State and the Head of Government are two different persons; in Zimbabwe it is the same person.
Though Head of State powers straddle across many and multiple aspects of governance in Zimbabwe, those powers have more constraining parameters than the Head of Government powers where the President has more prerogative and legroom.
It is expected that government officials understand all this.
Is the President a Member of Parliament?
To the Speaker of the National Assembly and some opposition leaders: the President is not a Member of Parliament; instead, he is a member of the Legislature, thus cannot just attend and sit in Parliament willy-nilly.
Read sections 116 and 118 of the Constitution.
He is not a member of either the National Assembly or the Senate.
The Legislature consists of Parliament and the President acting in terms of the Constitution.
So, the Legislature and Parliament, under our constitutional framework, do not mean the same thing.
Jacob Mudenda conflated the two and even then, did not realise he needed to also see the substantive sections that address the President's interaction with Parliament.
In fact, the roles of the Legislature and the roles of Parliament are different.
See sections 117 and 119.
The President's legislative role is limited to law-making, as he assents to all laws made by Parliament, and he has certain powers – including but not limited to sending back to Parliament and refusing to assent to new laws.
Can the President attend Parliament?
To the Speaker of the National Assembly and some opposition leaders: yes, the President may attend Parliament but only for specific reasons and in specific circumstances.
Mnangagwa's visit on 9th July does not meet one of those reasons or circumstances. There is no allowance in the Constitution for the President to just pitch up unannounced and occupy a seat of a Member of Parliament in the chamber simply because he is a member of the Legislature.
Section 140 of the Constitution regulates the President's attendance and addresses to Parliament.
The Speaker of the National Assembly seems oblivious to the import of this provision, as evidenced by his omission to reference it, choosing to mention (and wrongly so) section 116.
The President may attend only for the following purposes: to address either House of Parliament (not to sit, watch and listen) – and here he can invite himself and summon Parliament to meet (see also sections 110(2)(c)) and 146(a)); to answer questions on any issue per the Standing Rules and Orders of Parliament (not just to sit, watch and listen) – and here he must be invited. Charlton Hwende may cause Parliament to invite the President for this specific purpose.
It is also a constitutional requirement that the President must address a joint sitting of both Houses at least once a year.
All the above is notwithstanding that "the fact that a person who was not entitled to do so sat and voted in the Senate or the National Assembly or otherwise took part in the proceedings of the Senate or the National Assembly does not invalidate the proceedings", per section 124(2) of the Constitution.
Why is the President not a Member of Parliament and why can he not just attend and sit at will?
We have established that being a Member of Parliament and of the Legislature are two distinct things. Our Constitution has as both a founding value and principle, and a basic structure element, the separation of powers and limited government. This means we have three separate and equal branches of government which must provide checks and balances on each other, and each must maintain its constitutional and operational independence. This is how the design must work.
If the President can just attend and sit in Parliament at will, how do we guarantee that it does not influence what the Speaker and the Members of Parliament do? Jacob Mudenda's wrong legal justification, and an additional explanation about the President inspecting the building simply cannot land. It starts with these seemingly innocent and benign unannounced visits, and then certain unconstitutional conventions will be set. The President does not supervise and cannot do random checks on Parliament. He can do that to government ministries if he wants, for that is where he supervises.
If the President can just pitch up and sit in Parliament to "follow proceedings", what stops him from tomorrow pitching up in the courts to "follow proceedings", especially in matters in which he is not a party? If he does that, what does it do to the presiding officers and every other actor in that courtroom? One will want to argue that he is a citizen and is entitled like any other citizen to sit in court proceedings. But the reality is he is no ordinary citizen. He is the Head of State and Government. Judicial and parliamentary interference can and does happen in seemingly benign and innocent ways, not just in overt and egregious ways.
Yet that still is all interference.
Now, because in Zimbabwe we are way off the mark and we now do way more than subtle Executive interference in the work of both the Judiciary and Parliament, this issue I address here may be taken as light and as a non-issue by some.
The context makes me understand that. Still, we are duty bound to make it known that the President's unannounced and self-invited attendance to a session of any House of Parliament to sit in the seat of a member and "follow proceedings" breaches and undermines parliamentary independence.
---------
Dr Musa Kika is a constitutional and human rights lawyer.
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