Home » Governance » A Conversation On the Relationship Between the VPs and Parliament [opinion]

THE dispute, if any, regarding the relationship between former VP Dr. Mujuru and the Parliament of Zimbabwe is not only healthy but exposes many fault lines in Zimbabwe’s constitutional order.

An article published in Friday’s Herald entitled: “ZEC awaits proclamation,” http:www.herald.co.zwzec-awaits-proclamationseems to confirm that the ideas that informed the removal of Dr. Mujuru had a definite end-game in mind that has manifested itself at each station that has been associated with spectacular events.

By invoking s 129(1)(c) of the Constitution it is clear that the intention is to make her make decide whether she wants to retire in peace or face the music including total annihilation. The dispute, interestingly, raised its ugly head after Dr Mujuru naively exposed the fact that she intended to remain in Parliament after accepting her removal and the appointment of new VPs.

Until that moment, one can conclude that she, like many people, was not aware of the purported limitation imposed by s 129(1)(c) of the Constitution that when she assumed the position of VP her seat became vacant. I say purported because the provision applies to a President and Vice President as a team. I should like to believe that the inclusion of the President is deliberate because of the 10-year transition period.

In terms of s 88(1) of the Constitution, the President’s executive authority derives from the people and, as such, the incumbent’s, President Mugabe, authority has no relationship with Parliament. In respect of Zanu PF, no member can be appointed to the Politburo if such a member is not in the Central Committee.

What is being implied by the interpretation of s 129(1)(c) is that the President can appoint any person outside the legislature to be his Vice President yet the person so appointed would have right of audience in Parliament.

In terms of s 104(3), the President’s powers to appoint Ministers who are not in the pool of legislators is limited to only 5 persons. The President has already filled his quota suggesting that the appointment of VP Mphoko falls outside the limitations imposed by the Constitution. It is significant that the President in terms of s 99 of the Constitution can assign to his VPs tasks including the administration of ministries.

The question that arises is whether the President has the right to choose any person who is not a Member of Parliament that qualifies in terms of ss 104(3) and 124 of the Constitution. The term of office of a VP is provided for in terms of s 95 of the Constitution, being the same term as that of Parliament suggesting that the member so appointed unless he or she resigns will serve for a fixed term on a contractual basis with the government.

The person so appointed becomes an officer of government and the President’s powers to remove such a person are limited as set out in s 97 of the Constitution. Accordingly, the removal of the VP falls outside the powers of the President. In fact, there is no mention of the President in s 97 of the Constitution.

To the extent that no authority exists for the President to remove his or her deputy as such authority is vested with Parliament, the question that then arises is the conflict created by the operation of s 129(1)(c) of the Constitution that would appear to place the VPs outside the jurisdiction of parliament, the very institution vested with the power to remove the Vice President.

The section that has been invoked to remove Dr. Mujuru deals with the conduct of the VPs and in terms of s 106(3) of the Constitution, it is Parliament and not the President that is vested with the power to prescribe the code of conduct for the VPs. The way the constitution is crafted is that the VP is just a senior Minister and certainly not a successor to the throne.

This is evident in s 14(5) of Schedule 6 of the Constitution that provides that the VP who was last nominated by the deceased President to act as President will preside over the government until a new President assumes office in terms of s 14(5). The new President will certainly come from Zanu PF in which case Dr. Mujuru is no longer relevant. The ruling party has to notify the Speaker of Parliament within 90 days after the vacancy is created.

With respect to Zanu PF, the implications of the recent constitutional changes in terms of state power is not clear as the two VPs are not elected but appointed. What happens when the appointing party dies is not clear but could very well be a subject of dispute as it would be self-evident that such a person would need to secure hisher legitimacy at the party level.

It is not in dispute that the authority of the President derives from the mandate given to him by the people. However, in respect of the VPs, their legitimacy to hold office in the transition period of the constitution flows from their appointment by the President.

Based on the above, it would appear that whereas the President has a direct link with the people, the VPs do not have such a nexus with the people. The President is the head of the executive branch of government and the Parliament and the Judiciary are separate organs of the state.

What then are the consequences of the President appointing a Member of Parliament as his VP? It would appear that in terms of s 129(1)(c), the person so appointed ceases to have a relationship with Parliament and, therefore, it is not clear on what basis the person would interface with the Parliament.

What is clear is that the President has limited powers in so far as appointing Ministers. This right is limited to legislators. To the extent that the Vice Presidents may also act as Ministers, the new interpretation of s 129(1)(c) is that the President has now been clothed with powers that allow him to create extra seats for his agents, the VPs, in parliament.

It is the legal authority that allows non parliamentarians to interface with the legislature that raises questions.

The words of President Jefferson are poignant:

“I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical. Unsuccessful rebellions indeed generally establish the encroachments on the rights of the people which have produced them. An observation of this truth should render honest republican governors so mild in their punishment of rebellions, as not to discourage them too much. It is a medicine necessary for the sound health of government.” – Thomas Jefferson to James Madison, Paris, January 30, 1787

Accordingly, my views should not be construed as supporting or condemning any of the factions whose interests are at play but as a genuine attempt to inform and educate.

Source : New Zimbabwe