President Emmerson Mnangagwa acted unconstitutionally by flying to South Africa yesterday on an official visit before appointing his deputies, law experts have said, warning that if anything befalls him, it may have detrimental consequences for the administrative State given that there is no clear successor by operation of law.
While Mnangagwa has been quick to select his Cabinet, it has taken him inordinately much longer to fill the two top-level vice president positions in the State an indication that the issue might have become a hot potato in Zanu PF.
The chief secretary to the President and Cabinet Misheck Sibanda said in a statement yesterday that in the absence of Mnangagwa, Environment, Water and Climate minister Oppah Muchinguri-Kashiri had been appointed acting president.
“His Excellency, the President of the Republic of Zimbabwe,…Mnangagwa, has proceeded to the Republic of South Africa on a one day working visit, to meet with his counterpart, the President of the Republic of South Africa, His Excellency, Jacob Gedyeyehlekisa Zuma,” Sibanda said in a statement to the Daily News yesterday.
“During his absence and in terms of Section 100 (1) (c)(i) of the Constitution, …the president has designated the minister of Environment, Water and Climate, the honourable …Muchinguri-Kashiri, as acting president of the Republic of Zimbabwe.”
Constitutional law expert Lovemore Madhuku told the Daily News that the VP vacancies have potentially far-reaching implications for constitutional and administrative law.
“The president is acting unconstitutionally – it’s a critical position. The Constitution says the president ‘must without delay’ appoint VPs. The first appointment he should have made, according to the Constitution, is the VPs, not ministers. He can’t appoint ministers before appointing VPs.
“He committed a serious illegality by failing to appoint VPs; he has no constitutional reasons. In fact, his reasons are invalid,” reasoned Madhuku.
He said the Constitution envisages a situation where the president and his deputies appoint ministers and assigns functions to them, including the administration of any Act of Parliament or of any ministry or department, but the president may reserve to himself or herself the administration of an Act, ministry or department.
Madhuku alleged there has been a cocktail of illegalities by the new president, including taking oath as State president without the mandate of his party.
“In his closing speech at the Zanu PF congress, he indicated that he was not yet president,” Madhuku said.
Mnangagwa told the extraordinary congress: “Today I address you as the party’s president and first secretary subject to the ratification of the resolution of central committee meeting that sat on November 19, 2017.”
On November 19, Zanu PF’s central committee dismissed Robert Mugabe as party leader, and replaced him with the reinstated Mnangagwa.
It also expelled Grace Mugabe and senior Generation 40 leaders from the party, and reinstated membership for all those subjected to disciplinary measures since 2014.
Madhuku said appointing Muchinguri-Kashiri acting president was “even more scandalous.”
He said while Muchinguri-Kashiri was the most senior Zanu PF official in Cabinet after Mnangagwa, the chief secretary cannot invoke Section 100 (1) (c)(i) of the Constitution to clothe the illegality.
“They can’t rely on that section,” Madhuku said.
“It’s not designed for a president who has no VP. That section, it assumes there is a VP who is unable to exercise his function maybe because of ill-health then a minister can be appointed. It doesn’t apply before a VP has been appointed. He can’t leave the country before he appoints a VP. A president who hasn’t appointed mustn’t leave the country. The Constitution does not contemplate a situation where the president appoints Cabinet before VPs,” he opined.
Madhuku said despite affecting important areas of public policy, the vacancies in the VP positions have other serious implications.
“If something happens, there is no successor by operation of law,” Madhuku said.
“By the way, Oppah is not acting as vice president, there is no vice president. So, say Mnangagwa dies in a plane crash, it will create serious problems. It won’t be automatic that Oppah becomes a successor. They are creating unnecessary problems,” the University of Zimbabwe law professor added, warning of detrimental consequences.
“He is running the country like a tuck shop,” Madhuku said. “Proper head of State material would ensure that by now you have VPs. That’s the formal thing to do. This is unconstitutional, it has serious dangers. Mnangagwa is creating recipe for instability in the country.”
Political scientist Tamuka Chirimambowa said in a situation where the president becomes hospitalised or otherwise and is not able to make decisions, the country would have a serious problem as the power vacuum becomes real.
“It may render the Executive dysfunctional. It may potentially open avenues for bitter contestation of who is in charge because it may have been left open. We have to remember that power vacuums and uncertainty have always bred disaster after disaster in politics,” said Chirimambowa.
“The ‘Bond Coup’ drama of the last two months or so was a result of the perceived power vacuum and uncertainty on succession in ruling party and government. In this case, the new administration has to be more alive to this reality than anyone and leave no power vacuum even if it means the president may be absent even for a second. It’s something that the new Czar needs to quickly sort out. Continuing the culture of governance hinged on uncertainty and suspense may be playing Russian Roulette if not handled properly,” he continued.
Civil rights campaigner and analyst Gladys Hlatywayo disagreed.
She said there was no power vacuum, adding the “real president” is in the country.
“Let us not be fooled. This is a military junta and not a civilian government. So where Mnangagwa goes in my opinion is immaterial. The real power resides in the military,” she said, tongue in cheek.
The military has been directly involved in “guiding” both the ruling party and the government’s new direction.
Piers Pigou, southern African director of the International Crisis Group, said he gets a sense that the hold-up in the appointments of VPs was because of former Zimbabwe Defence Forces commander General Constantino Chiwenga’s shift from the army to politics.
Regarded by many as the power behind Mnangagwa, Chiwenga has signalled that the military is now a direct political player, with many anticipating that he will be appointed one of the two VPs after his retirement by the president and pending “redeployment” confirmed as part of the military leadership reconfiguration announced this week.
“I don’t think we should read too much into it, notwithstanding concerns that these differences between Mnangagwa and Chiwenga, especially with respect to strengthening powers of the VP and guarantees of succession,” Pigou said.
“It appears to be in the interest of both to resolve this quickly as possible. The longer it drags on, however, the more speculation it will generate that there are two centres of power.”
Spokesperson of the Morgan Tsvangirai-led MDC, Obert Gutu, said it is really strange that Zimbabwe still does not have VPs.
“This betrays the fact that there are a lot of things taking place behind the scenes regarding the appointment of VPs. There is too much jostling for these top posts. President Mnangagwa is in a very tight spot.
“He has to appease the military top dogs who brought him into power and at the same time, he doesn’t want it to appear like his government is a de facto military administration. The balancing act is proving very difficult to play,” Gutu told the Daily News.
United Kingdom-based Zimbabwean academic George Shire said “the thing about ED is that he does not like to be micro-managed and does not want to be seen to be rushed by anybody so again we are gonna (sic) have to get used to waiting and playing the long game.”
“He wants to be ahead of events. He knows that you guys want him to name the VPs because you have already decided who it will be and my guess is he will want to do things his own way in his own time. There is a new boss in town,” Shire said. DailyNews