CONTROVERSY surrounds the legal status of Vice-Presidents Emmerson Mnangagwa and Phelekezela Mphoko after it emerged this week that Chief Justice Godfrey Chidyausiku was prepared to preside over their swearing-in ceremony in December last year in line with what he believes is his constitutional duty.
This comes as it also surfaced that senior government and Zanu PF officials approached Mnangagwa, also Justice minister and a lawyer by training, after he was sworn-in alerting him to the potential illegality.
Government officials say Chidyausiku was shocked that Mugabe swore-in the VPs at State House on December 12, shortly after firing former vice-president Joice Mujuru and several ministers aligned to her faction in the ruling Zanu PF party following a hotly-contested succession battle leading to its controversial congress in December.
Officials told the Zimbabwe Independent this week Chidyausiku delayed or cancelled a business trip to India at the material time to preside over the swearing-in ceremony believing that in terms of the law it was his constitutional duty to do so, as mandated by Section 94 of the constitution.
Section 94 states: “Persons elected as President and Vice-Presidents assume office when they take, before the Chief Justice or the next most senior judge available, the oaths of President and Vice President respectively in the forms set out in the Third Schedule… ”
Some senior government officials who attended the swearing-in ceremony were uncomfortable as they were also convinced Chidyausiku should have overseen the ceremony and pointed it out to Mnangagwa later, hoping the anomaly would be corrected in due course.
The controversial issue continues to generate debate in political and legal circles, with some insisting the two VPs are illegally in office by virtue of they were sworn-in.
Some lawyers, however, argue that the constitution is vague in that grey area concerning the swearing-in of the VPs. They say Section 94 of the constitution only deals with “elected” VPs whereas Mnangagwa and Mphoko were appointed, not elected after Zanu PF amended its constitution to give the party leader wide and discretionary powers to appoint all senior officials.
Despite that Chidyausiku seems to have been convinced it was his deputy to swear-in the VPs, Law lecturer at the University of Zimbabwe Professor Lovemore Madhuku said Mugabe was within his rights as “the section applies to those elected and not those appointed by the president”.
“I think the clause is not yet in force,” he said.
Section 92 (2) of the constitution, which deals with the election of the president and VPs, reads:
“Every candidate for election as president must nominate two persons to stand for election jointly with him or her as vice-presidents, and must designate one of those persons as his or her candidate for first vice-president and the other as his or her candidate for second vice-president.”
The clause was, however, parked for 10 years in the sixth schedule of the new constitution and would only come into effect in 2023. The sixth schedule also empowers the president to appoint deputies but does not state the person who should swear them into office.
UK-based law lecturer at the University of Kent, Dr Alex Magaisa says given that the constitution is unclear on how appointed VPs are sworn-in, it would still fall “within the bounds of constitutionality” if either the Chief Justice or the President presided over the ceremony.
“The first is that this was illegal, since the new constitution requires that the Vice- Presidents must be sworn in by the Chief Justice or in his absence, the next most senior judge. This is in accordance with Section 94,” he said.
Magaisa, however, said an ordinary meaning of that clause would suggest that it only applies where the Vice-Presidents are elected.
“There would have been no reason to refer to them as ‘elected’ if that was not important. The implication of all this is that where Vice-Presidents are appointed, this provision would not apply,” he said.
It would be “desirable” for the VPs to be sworn-in by the Chief Justice but it would not be unlawful not to do so, he added.
Magaisa noted that Section 97 of the constitution provides for the removal of a Vice-President, while Section 101 deals with how a vacancy in the Vice-Presidency is filled. Section 101 stipulates that when a vacancy arises and the first VP is elevated to the presidency, a new second VP would have to be appointed.
“However, there is no specific provision in the constitution providing for how such an appointed Vice-President is to be sworn into office. In other words, while section 94 deals with the swearing-in of ‘elected’ Vice-Presidents which must be administered by the Chief Justice, there is no equivalent provision which deals with the swearing-in of an ‘appointed’ Vice-President, where that Vice-President is replacing an elected Vice-President in terms of section 101(1)(c) or section 101(2)(b),” noted Magaisa.
He said Mugabe could have presided over the swearing-in ceremony on the basis of the “little-used but quite powerful section 342 of the constitution”. This provision relates to the exercise of powers conferred under the constitution.
It states, in the relevant part (Section 342(3)), that, where a power, jurisdiction or right is conferred by this constitution, any other powers or rights that are reasonably necessary or incidental to its exercise are impliedly conferred as well.
This means that if a public authority has been given power under the constitution to do something that authority would be entitled to exercise any other powers or rights that reasonably flow from its exercise.
