Section 129 (1) (c) of the Constitution of Zimbabwe Amendment (No. 20) Act of 2013 that deals with the tenure of seat of a Member of Parliament stipulates that, “the seat of a Member of Parliament shall become vacant upon the Member becoming President or Vice President.”
Former Vice President Mujuru was, thus, going to Parliament as Vice President, not as Member of Parliament since Vice Presidents are not Members of Parliament.
Dr Mujuru was fired from Government, along with eight ministers, on December 9 for behaviour inconsistent with her official responsibilities in the discharge of her duties.
This came in the wake of allegations of high level corruption, bribery, extortion, abuse of office, undermining the authority of, and seeking to depose or assassinate President Mugabe that she faced.
Similarly, Vice President Mnangagwa ceased to be National Assembly Member for Chirumanzu-Zibagwe Constituency last Friday when he – along with VP Phelekezela Mphoko – took his oath of office before President Mugabe at State House in Harare.
Mnangagwa’s National Assembly seat automatically became vacant by operation of the law when he assumed the Office of Vice President of Zimbabwe.
At law, Vice Presidents are not Members of Parliament, although they can sit there for debate, be leader of the House conduct business there, but they do not vote.
Similarly, while there has been speculation in some quarters as to what would become of VP Mphoko within 90 days if he did not find a seat, the same constitutional provision that strips VPs of their membership of the legislature means VP Mphoko does not need a seat to sit in the August House or retain his post as Vice President of Zimbabwe.
While National Constitutional Assembly leader Professor Lovemore Madhuku who filed a constitutional Court application challenging the appointment of Vice Presidents Emmerson Mnangagwa and Phelekezela Mphoko claimed that they should not be given ministries after VP Mnangagwa retained his Justice, Parliamentary and Legal affairs ministerial portfolio while VP Mphoko assumed the National Healing and Reconciliation portfolio that was previously held by late VP and national hero John Landa, the two can hold such portfolios.
Section 99 of the Constitution stipulates that, ”the Vice-Presidents assist the President in the discharge of his or her functions and perform any other functions, including the administration of any ministry, department or Act of Parliament, that the President may assign to them.”
To compound matters for the beleaguered former VP Mujuru, in terms of Section 103 she cannot be an MP, let alone hold any other form of employment, now that she has been vice president of Zimbabwe.
Section 103 stipulates that, ”the President and Vice President, and any former President or Vice-President , must not, directly or indirectly, hold any other public office or be employed by anyone else while they are in office or are receiving a pension from the State as former President or Vice-President, as the case may be.”
ZEC has, naturally come underfire, for sleeping on the job in failing to call a by-election in Mt Darwin West yet they declared Buhera Sout, which fell vacant following the death of Kumbirai Kangai on August 24 2013.
ZEC chairperson Justice Rita Makaru, refused to comment on the matter yesterday referring all questions to the electoral body’s Acting Chief Elections Officer Mr Utoile Silaigwana.
However, Mr Silaingwana said; “I am sorry I cannot answer those questions off head. Do you mind sending your questions on e-mail so that I respond to you tomorrow?”
In terms of the new Constitution Schedule VI paragraph 14 there is no First or Second Vice President. This is why, in the event of the incapacitation of the President, the VP who acted last continues as acting president.
The issue of First and Second Vice Presidents is in the Running Mate clause Section 92 (2) that says, ” 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.”
This section has, however, been put in abeyance till 2013 when it is supposed to come into effect. As such under the current constitution, the two Vice Presidents are at par, and either of them can act at the pleasure of the President.
When the President appointed the two VPs at the extra-ordinary Central Committee meeting last week he said I am appointing one from former Zanu and one from former Zapu in accordance with article 4 of the Unity Accord, he didn’t say first or second Vice President.
According to paragraph 14 (1) (b) of the Sixth Schedule to the new Constitution, ”…the President may from time to time nominate one of them to act as President whenever he or she is absent from Zimbabwe or is unable to exercise his or her official functions through illness or any other cause.”
And where the President dies, resigns or is removed from office, paragraph 14(4) (a) says the Vice President who was last nominated to act acts as President until a new President assumes office.
There have also been reports attributed to the Prosecutor General that the appointments of the two Vice Presidents was done in terms of the old Constitution, the fact is the VPs were appointed in terms of the new Constitution since the Lancaster House Constitution was repealed on August 22, 2013 when President Mugabe was inaugurated, which was the effective date of the new Constitution in its entirety.
The idea that the two VPs were appointed in terms of the old Constitution is thus incorrect.
The PG’s claims have given the likes of National Constitutional Assembly leader Professor Lovemore Madhuku ideas to file an application saying the Constitution says the President must appoint not more than two vice presidents and had delayed in naming the two vice presidents.
Government spokesperson; Information, Media and Broadcasting Services Minister Professor Jonathan Moyo said it was ironic Prof Madhuku was approaching the court when by virtue of appointing the two VPs, the President had fulfilled Prof Madhuku’s wishes.
”Of course we have noted comments from a number of learned people who have commented on their fellow learned person in the name of Prof Madhuku showing how misguided he is but the bottom line is if you give Madhuku the benefit of the doubt and take his argument as correct that there has been a delay or there was a delay in having two because he admits there was no delay in having one, there was a delay in having two. What is the logical implication of that? How do you remedy a delay? You remedy a delay by fulfilling the requirement; you don’t remedy a delay by eliminating the requirement.
”If you go to court arguing that there has been a delay in doing something, you will be asking the court to ask for the fulfillment not to go without. So if Madhuku has an argument, his wishes have been fulfilled. And there is no reasonable court which will fail to see that,” Prof Moyo said.
The dismissal of former Vice President Mujuru and the appointment by the President of the two new Vice Presidents has been received with a lot of misinformation, disinformation and misrepresentation. And all of them based on either ignorance or misunderstanding of the new Constitution even from scholars of jurisprudence like Prof Madhuku, and former political advisor to MDC-T leader Mr Morgan Tsvangirai, UK-based lawyer Mr Alex Magaisa.
