- Published on 12 December 2014
- Written by Newsday
FORMER Vice-President Joice Mujuru, despite being fired from government will continue to draw the full salary of a State VP for life, according to the Constitution.
This is the first time Zimbabwe has had a living former Vice-President, as the others — Joshua Nkomo, Simon Muzenda, Joseph Msika and John Nkomo — all died in office.
According to Section 102 of the Constitution on Remuneration of President and Vice-Presidents: "A person who has ceased to be President or Vice-President is entitled to receive — (a) a pension equivalent to the salary of a sitting President or Vice-President, as the case may be; and (b) such allowances and other benefits as may be prescribed under an Act of Parliament."
However, Section 103 bars former Presidents or Vice-Presidents from "directly or indirectly holding any other public office or be employed by anyone else while he or she is in office or is receiving a pension from the State as former President or Vice-President, as the case may be".
This was revealed in a lawsuit by National Constitutional Assembly national chairperson Lovemore Madhuku against President Robert Mugabe’s decision to appoint outgoing Justice minister Emmerson Mnangagwa and former ambassador Phelekezela Mphoko as Vice-Presidents-elect.
Madhuku said the appointment of Mnangagwa and Mphoko as VPs would strain the country’s budget as, according to section 102, Mujuru is still entitled to a life pension equivalent to the salary of a sitting Vice-President.
"If the President appoints two Vice-Presidents, the nation will be paying for three Vice-Presidents including former Vice-President Mujuru. The nation had not contemplated such a state of affairs since the President, for one-and-a-half-years after his election, was working with one Vice-President," Madhuku said.
Madhuku said Mugabe’s decision was unconstitutional and — through his lawyers Mbidzo, Muchadehama & Makoni — was last night set to file a Constitutional Court challenge to stop Mugabe from declaring the appointments.
The development came amid disclosures that Mugabe sacked former Vice-President Joice Mujuru and eight other ministers using a section of the Constitution that still requires an enabling Act to be effective.
Mugabe dismissed Mujuru on Tuesday in terms of section 106 (2) (b) of the Constitution which reads: "Vice-Presidents, Ministers and Deputy Ministers may not, during their tenure of office, act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of conflict between their official responsibility and private interests."
However, yesterday during the inter-ministerial meeting on alignment of legislation to the Constitution chaired by Attorney-General’s chief drafter Nelson Dias, it was revealed that the Act to deal with ministers’ code of conduct was still at the consultation stage.
"We are still on the consultation stage of the enactment of the conduct of Vice-Presidents, Ministers and Deputy Ministers envisaged by section 106(3) of the Constitution. The consultation took longer because of the political process (Zanu PF congress) that was recently ongoing," one Charumbira from the Office of the President and Cabinet told the meeting.
Section 106 (3) reads: "An Act of Parliament must prescribe a code of conduct for the Vice-Presidents, Ministers and Deputy Ministers."
The draft Bill is expected to be ready by the second half of 2015 after extensive consultations with stakeholders who include the Cabinet office, ministers and Parliament.
In a founding affidavit by Madhuku gleaned by NewsDay, the University of Zimbabwe constitutional law lecturer said Mugabe appointed only Mujuru soon after he was given a fresh five-year mandate and could not replace her with two Vice-Presidents.
"The appointment of two Vice-Presidents to replace one Vice-President is unconstitutional. It is not permitted by paragraph 14(2) of the Sixth Schedule to the Constitution of Zimbabwe, 2013," Madhuku said.
Mnangagwa and Mphoko were appointed as party vice-presidents on Wednesday and Mugabe immediately announced that they would be sworn in as Zimbabwe’s two Vice-Presidents. Their appointments came after the firing of Mujuru on allegations of plotting to unseat a democratically elected President.
But with Madhuku’s court application, Mnangagwa and Mphoko might have to wait a little longer before they assume their newly-appointed duties.
Mugabe is cited as the first respondent, Mnangagwa as second while Mphoko is the third respondent. Madhuku said Mugabe was placing himself above the law.
"The basis of the application is that the 1st Respondent is likely to infringe two fundamental rights enshrined in the Constitution of Zimbabwe, 2013, namely (a) the right to equality before the law and equal protection and benefit of the law protected by section 56(1); and (b) the right to administrative justice protected by section 68," Madhuku argued.
"The 1st Respondent therefore intends to act contrary to the law, thereby infringing the rights of both the 1st applicant and myself. Acting contrary to law is a direct infringement of the right to equality before the law and the equal protection of the law."
Madhuku said Mugabe’s option to appoint one or two Vice-Presidents is only exercised soon after the President is sworn into office. Once he decides to appoint one Vice-President, as the case with Mujuru, he cannot change his mind and have two Vice-Presidents during the same term of office, according to the Constitution.
"Without delay the person elected as President in any election referred to in sub-paragraph (1) must appoint not more than two Vice-Presidents, who hold office at his or her pleasure, paragraph 14, sub-paragraph 2 of the Sixth Schedule to the Constitution reads," Madhuku argued.
"Without delay is a very clear expression. The nation must know, right from the start, whether the President will have one or two Vice-Presidents. Once he makes his decision, he is not given power to change his mind during the course of his five-year term."
Mugabe, Madhuku argued, should have explained to the nation before making such a decision.
Although Madhuku’s lawyers had not filed the court application by late evening yesterday, Andrew Makoni said they had already received the instruction from Madhuku.
A number of legal analysts have also since Mujuru’s dismissal expressed reservation about the legality of the section that Mugabe cited in sacking her.
Kent University law lecturer Alex Magaisa said Mugabe could have avoided the labour of explaining himself to the nation by firing Mujuru in terms of Sixth Schedule section 14 (2).
Magaisa wrote: "President Mugabe could have avoided trouble simply by using section 14(2) of the Sixth Schedule rather than base his decision to fire Mujuru, as he has done, on the basis of section 106(2)(b)."
He added that Mugabe by using section 106 (2) (b) had exposed his decision and himself to contestation and assumed greater obligations that must be fulfilled before he could fire Mujuru — rights to a fair hearing and the right to proper administrative conduct.