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Itayi Garande Correspondent
DID President Mugabe err in not declaring the seat held by Vice-President Joice Mujuru vacant when he appointed her as Vice-President? No, he did not. Now that Parliament has written to the Zimbabwe Electoral Commission (ZEC) and the President, advising him of the ‘vacancies’, it is well within his power to proclaim them as vacant or not. The reasons for this are explained below — and they have caused considerable debate between me and Alex Magaisa. Students of Constitutional Law may very well benefit from the ongoing debate.

The debate was triggered by Magaisa’s two articles entitled. “Legal implications of appointments to be VPs” and another one entitled, “Unpacking VPs and ministerial portfolios”. There was a third piece titled, “The Constitution and the Vice Presidency: A reply to replies” in which he made many bold legal statements that need to be responded to.

Magaisa argues that President Mugabe erred in not declaring the seat held by former Vice-President Mujuru vacant. This is because the current law, as it stands, does not allow a Vice-President to hold a parliamentary seat, and if elected; her seat becomes vacant by operation of the law.

Magaisa further argues that this applies also to appointed MPs.

I argue that the President made no mistake by not declaring that seat vacant, and that s. 29 (1) (c) which says a seat becomes vacant upon one member becoming a Vice President or President only applies to elected, not appointed VPs. There is another provision for appointed VPs under the Sixth Schedule.

Such confusion is found in the current constitution and there are many inconsistent provisions covering the Vice-Presidency. This is because some of the provisions took effect on the effective date and others technically take effect in 2023. Yet there are other provisions which refer to elected Vice-Presidents, when we have only appointed ones.

When such confusion exists, both the letter and spirit of the law need to be considered in interpreting the law.

Magaisa prefers to use the strict legal interpretation of the law, or the literal rule only. This is his preference, but is dangerous in a country where the constitution is a compromise document of conflicting political interests and the wishes of the people. This rule is used by many orthodox judges because they view their role as to apply what is in statutes.

The problem with this rule is that there is no single, uncontested, literal understanding of clauses and words. That’s why other rules apply, like the Golden Rule which looks at what Parliament intended so that there is no absurdity, or the Mischief Rule which looks at what the legislators’ intention was because of ambiguity in the statute. This can be done by looking at the common law before the Act or the remedy needed. The purposive approach combines the three.

Thus when Magaisa makes the bold claim that “the basic rule of interpretation is that you should apply the ordinary meaning of a clause” he is suggesting that there is only one basic rule of interpretation — the literal rule. That is not true and such legal reasoning presents its own problems when talking about constitutions that were drafted in highly charged political environments, like the Lancaster House Constitution and our current Constitution, or the Kariba Draft which never saw the light of day.

Magaisa should know that applying strict legal rules requires no ambiguity in the wording of the clauses. The ambiguity in the current clauses on VPs is that there is reference in many sections to elected VPs, yet we have none – all current VPs are appointed.

The Constitution has many such conundrums and yawning gaps. This is because of problems encountered in the drafting the final copac version and the political debates that took place at that time. Sometimes the wording was changed by politicians, especially in a heated political environment like the one which obtained during the Inclusive Government.

Section 94, for example, is not suspended, but it refers to elected VPs who should take an oath of office before the Chief Justice or the next most senior judge available, in the forms set out in the Third Schedule (s. 94(1)) on the ninth day after they are declared to be elected (s. 94(1)(a)). Why should we have that clause when VPs will be elected from 2023? Why did VPs Mujuru, Mnangagwa and Mphoko get sworn in by the President, not the Chief Justice?

We can only interpret this by looking at the spirit of the law as clarified in the Sixth Schedule which says VPs hold office at the pleasure of the President (s. 14(2) of the Sixth Schedule). This, however, does not clarify why the President fired her and not Parliament as required under s. 106(2)(b), which is not suspended.

Former VP Mujuru was said to have “acted in a way that is inconsistent with her office, or exposed herself to any situation involving the risk of a conflict between her official responsibilities and private interests”.

Reasons for her dismissal are under s. 106(2)(b). The procedure for her dismissal from that post, not by Parliament under s. 97, but by the President is under s. 42 (2) of the Sixth Schedule. The power to dismiss former VP Mujuru is inferred from the wording “at his or her pleasure”. There is no clear guideline at the moment as to the process used to fire an appointed VP. We infer it from the spirit of the law or by looking at other rules of interpretation, not the strict rule.

The strict rule is found in s. 97 on the ‘Removal of President and Vice-President from Office’. It requires the Senate and House of Assembly to pass a joint resolution by at least half of their total membership to remove the Vice-President. However, the President used his powers inferred from the Sixth Schedule, to fire Vice-President Mujuru.

Unlike s. 92 which is currently suspended, the provisions of s. 97, which is not currently suspended, did not guide the President in dismissing Vice-President Mujuru. So in interpreting the dismissal, we are not guided strictly by s. 97, but by the Sixth Schedule and the spirit, not letter, of that Schedule.

The VP was serving at the pleasure of the President, but the reasons for her dismissal were as in s. 106(2)(b). This meant the President could dismiss her without resorting to Parliament or clarifying the reasons.

Magaisa says I should not have made reference to s. 92 because it is currently suspended. The reason why s.92 was suspended was because it would have caused many legal and political problems. The Sixth Schedule is an important interpretative tool for the transition. For the 10-year period the status quo ante under the Inclusive Government is more or less retained through that schedule.

VPs are to be appointed by the President, who retains the discretion as to whether or not to appoint one or two VPs and whether or not they remain as Members of Parliament. This is only a transitional flexibility. So the President did not err in not declaring the vacancy of VP Mujuru open. He may, however, use his discretion to make a proclamation that the seats are vacant.

In another piece published by NewsDay on December 18 2014 titled, “Mujuru finally loses Mt Darwin West seat,” Magaisa correctly argues that; “A public office is defined in the Constitution’s Section 332 as a paid office in the service of the State” and that “. . . an MP is regarded as a paid officer in the service of the State”.

Section 13 of the Sixth Schedule offers a clue on how to interpret the law on former VP Mujuru’s parliamentary seat. It reads: “Any person who, immediately before the effective date, held or acted in a public office under the former Constitution continues to hold or act in that office, or the equivalent office under this Constitution, on the same conditions of service until the expiry of his or her term of office under those conditions of service or until he or she resigns, retires or is removed from office in terms of this Constitution or those conditions of service, as the case may be.”

VP Mujuru would have thus legally continued as a VP under the same conditions. She was an MP under the former Constitution. This is how the Sixth Schedule handles the issue of transition of an appointed Vice-Presidents.

Magaisa says I “seem to argue that s. 129(1)(c) under which a new VP loses his or her seat does not apply because it was designed to apply in situations where a VP is elected as a running mate under s.92”. Yes, it does not apply for those reasons. The fact that s. 92 is suspended renders the other provisions related to elected VPs difficult to implement. This is because you cannot apply them to appointed VPs.

Magaisa knows the genealogy of the Constitution. He was advisor to former Prime Minister Tsvangirai. So he should know that the final version of the Constitution was a political compromise. The Sixth Schedule was a special provision, tailor made to Zanu-PF’s requirements in anticipation of President Mugabe remaining President after the 2013 election. So it has to be read in that “spirit of the law” — it is a transitional document that allows flexibility in dealing with difficult transitional legal issues.

Magaisa argues that we should not read s. 129(1)(c) in the “spirit of the law” because it is “dangerous”. It is not clear what he means by dangerous, but I would argue that unless VP Mujuru had been elected, then we should have looked at the literal interpretation of that clause. Otherwise how do you explain all the other provisions, for example her dismissal by President Mugabe when there is only a provision for dismissal by Parliament?

In that light, Magaisa should also then argue that President Mugabe erred in dismissing VP Mujuru without parliamentary approval. He does not. He, however, argues that there was an easier process under s. 14(2) of the Sixth Schedule, thus giving credence to the fact that the President has discretion to use either of the current provisions.

There are other conundrums which cannot be addressed by using the strict legal interpretation that Magaisa prefers.

The Zanu-PF Constitution, for example, contains no provisions to deal with Vice-Presidential running mates, despite that clause being suspended. It is still within the Constitution and will be effective in 2023, so lawyers have to analyse its future applicability.

There’s no contingency to deal with it in Zanu-PF and MDC, so why have it in the constitution in the first place? Why not retain the previous set up where there are no running mates? Why have two Vice-Presidents anyway? Is that not the spirit of the Unity Accord at play, the spirit of the law? The MDC argued against this set up, but Zanu-PF retained that set up in the spirit of the Unity Accord.

One could argue that existing provisions for the appointment of party Vice-Presidents could stand as the provisions to select nominees for national Vice-Presidential candidates. This then would leave incumbent Vice-Presidents in pole position against any other future contenders. The adoption of the running mates clause would effectively be interpreted as determination by President Mugabe that one of these two VPs should be next president. Professor Jonathan Moyo’s Sunday Mail interview this week was clear that this would be unconstitutional.

If the current law should be read in strict terms, Magaisa should tell us who between VP Mnangagwa and VP Mphoko is the First and Second VP as required under s. 100 on acting presidency. Should we not defer to the “spirit of the law” and look at the Zanu-PF constitution as allowed under the Sixth Schedule?

There’s one other example, where Magaisa would run into legal problems by reading the law in strict terms. The Constitution as it stands is silent as to whom the Speaker of Parliament should consider as the person authorised to submit the nomination of presidential candidate for Zanu-PF. A party president usually is assumed to carry out this role, as he represents the party. Consider what would happen if President Mugabe retires as state president during his current term, but not party president, and submits the name of a nominee to replace him to the Speaker, say current VP Mnangagwa? The Speaker would have to determine if the president has authority to do so, by deferring to the Zanu-PF Constitution. What if the Speaker decides to use his discretion and negate Zanu-PF rules? Would that delegitimise a nomination by an authority the Speaker should consider authorised to do so? There are many such eventualities where the spirit of the law has to be considered because applying the letter of the law would present problems.

Zimbabwe Constitutions since the 1979 Lancaster House Constitution have been inspired by the chequered politics of the country, so we should not just view the Constitution in strict legal terms, but as a source of foundational concepts for the governing of our society, safeguarding our ideals, our national interests in interpreting it.

During the 2000 presidential campaign, US Democratic candidate, Al Gore said national constitutions should be “living and breathing documents”. Indeed. That’s why we have transitional clauses like the Sixth Schedule which allow for flexibility in applying the law. President Mugabe did not err in not declaring the parliamentary positions of VP Mujuru and Mnangagwa vacant. That does not mean he will not proclaim them as vacant. He might do, since Parliament has declared them as such.

Dr Itayi Garande writes from the United Kingdom. He can be reached via [email protected].