LEGAL experts yesterday said President Robert Mugabe and Speaker of the House of Assembly Jacob Mudenda should be charged with violating the Constitution when they failed to declare former Vice-President Joice Mujuru's parliamentary seat as vacant soon after her re-appointment to the post last year.

The experts said the two should not have allowed Mujuru to retain her Mt Darwin West seat and should have ordered a by-election at least by December 12 2013, according to the law.

Section 129 (1)(c) of the Constitution states that "The seat of a Member of Parliament becomes vacant — . . . (c) upon the Member becoming President or Vice-President."

Mujuru was appointed Vice-President on September 11 2013 making her parliamentary seat automatically vacant and by law, Mudenda was supposed to declare the seat vacant with Mugabe constitutionally proclaiming a by-election date within 90 days.

The Chirumanzu-Zibagwe seat held by Mujuru's successor, Emmerson Mnangagwa, has also automatically fallen vacant after his appointment as VP by Mugabe last week.

Mudenda is thus expected to immediately declare the seat vacant with Mugabe proclaiming dates for elections to be held within 90 days.

United Kingdom-based constitutional law expert Alex Magaisa, in an open letter to Mudenda and Mugabe, said there was need for Mugabe and Mudenda to take responsibility and correct these wrongs.

"The point is that when an MP becomes a VP, his seat becomes vacant in terms of the Constitution. This means Mujuru's seat became vacant last year and Mnangagwa's seat is also now vacant," he wrote.


"The fact that a by-election was not called in terms of Section 158(3) of the Constitution means there was a breach of the Constitution. The President is supposed to call elections in terms of Section 110 of the Constitution. The President was not properly advised and failed to uphold the Constitution. The President has a duty to uphold and defend the Constitution. This matter needs correction and acknowledgement of errors."

MDC-T spokesman and lawyer Obert Gutu agreed with Magaisa, saying the contravention of the Constitution was nothing new because it was "in the DNA of Zanu PF" to breach the Constitution when it was convenient for them.

"What we have is a country Constitution, but without constitutionalism. This is the hallmark of Zanu PF. They duck and dive every time they see a constitutional provision which does not suit their needs," he said.

Gutu said Mugabe had failed to adhere to the constitutional provisions which create provincial councils 13 months after elections.

"They have clearly ignored the concept of devolution and provincial councils. Thirteen months after the election, we still don't have an enabling Act because Zanu PF is uncomfortable with this provision," Gutu said.

MDC-T secretary-general and former Copac co-chairperson Douglas Mwonzora said the provision was very clear and could not be read otherwise.

"We should have had a by-election in Mt Darwin West and now another by-election should be held in Chirumanzu-Zibagwe, but that did not happen, it's only emerging now because of sour grapes within Zanu PF," he said.




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