Presidential inauguration, end of inclusive Government

This followed the withdrawal on Friday 6th August by MDC-T leader Morgan Tsvangirai of his election petition challenging the Presidential election results, and the Constitutional Court’s ruling on Tuesday 20th August that Mr Mugabe won the election which had taken place on 31st July .

The elections were also recognised at the SADC Heads of State meeting in Malawi on 17th and 18th August. [SADC communiqué from this Malawi SADC Summit available on www.veritaszim.net or, for those without Internet access, from veritas@mango.zw]

On Sunday 25th August President Mugabe opened the Assembly of the United Nations World Tourism Organisation being co-hosted by Zimbabwe and Zambia at the Victoria Falls.

His next major task as President will be the ceremonial opening of the new Parliament, in which his party ZANU-PF won a substantial majority in the recent elections.

New Constitution Completely in Force from 22nd August

The new Constitution provides that the day the President was sworn in is the “effective date” for it to entirely replace the old Constitution [section 332 and paragraph 3(2) of the Sixth Schedule]. Therefore, it was on 22nd August that the provisions of the new Constitution that had not already come into operation on “publication day”, i.e. when it was first gazetted on 22nd May, finally came into operation [see Constitution Watch 29/2013 of 22nd May for a list of the provisions that had already come into force]. The Act setting out the effective date of the new Constitution also provides that those provisions of the old Constitution that had continued in force after 22nd May stood automatically repealed from that date.

The old Constitution has now been totally repealed and replaced. [From now on all references to the Constitution refer to the new Constitution unless otherwise stated.]

Inclusive Government Ended on 22nd August

The persons previously holding the offices of Vice-President, Prime Minister, Deputy Prime Minister, Minister and Deputy-Minister ceased to hold those offices immediately President Mugabe was sworn in. They had continued in office until that moment under a transitional provision in the Constitution [Sixth Schedule, paragraph 15]. The final repeal of the former Constitution removed the legal basis for the Inclusive Government set out in Article 20 of the GPA as enshrined in Schedule 8 to the former Constitution.

Appointment of Vice-Presidents and Ministers

Vice-President or Vice-Presidents President Mugabe must “without delay” appoint one or two Vice-Presidents [Sixth Schedule, paragraph 14(2)].

[Note: These Vice-Presidents are not “Presidents in waiting” one of whom will automatically become President in the event of the incumbent President dying, resigning or being removed from office. Under paragraph 14 of the Sixth Schedule to the Constitution, which applies if such an event occurs before the 2023 elections, the resulting vacancy in the office of President must be filled by a nominee of the political party under whose banner the departed President stood for office, i.e., in President Mugabe’s case, ZANU-PF.]

Ministers and Deputy Ministers are also appointed and assigned their functions by the President, but the President may reserve to himself the administration of any Act, Ministry or department. Up to five Ministers or Deputy Ministers, chosen for their professional skills and competence, may be appointed from outside Parliament. But all other Ministers and Deputy Ministers must be appointed from among Senators or members of the National Assembly. In appointing Ministers and Deputy Ministers the President must be “guided by considerations of regional and gender balance” [Constitution, section 104]. There is no limit on the number of Ministers.

Cabinet The President, as the “head of Cabinet”, presides over Cabinet meetings when present; if he is absent, a Vice-President presides [Constitution, section 105]. Vice-Presidents are automatically Cabinet members. The President may appoint Ministers to the Cabinet, but need not appoint every Minister. The President must “act on the advice of the Cabinet” except when exercising functions such as signing Bills into law; calling extraordinary sessions of Parliament to conduct special business; making appointments which the Constitution or legislation requires the President to make; calling elections or referendums; deploying the Defence Forces; conferring honours and awards; appointing Zimbabwe’s diplomatic representatives; and recognising foreign diplomatic representatives [Constitution sections 104, 105 and 110].

Note: Acting “on the advice of” the Cabinet This is not a new term in our constitutional law, but section 339 of the Constitution helpfully spells out what it means; in short, the President must inform the Cabinet what he proposes, must afford the Cabinet a reasonable opportunity to tender advice, and “is obliged to follow the advice tendered”.

Other Transitional Provisions

The Sixth Schedule to the Constitution also contains other provisions governing the transition from the former Constitution.

Existing laws All existing laws continue in force, but must be construed in conformity with the Constitution [Sixth Schedule, paragraph 10].

Interpretation of existing legislation Adaptation of former terminology to the different terminology used in the Constitution is catered for [Sixth Schedule, paragraph 11]. For instance, references to the House of Assembly must now be construed as references to the National Assembly; references to the Public Service as references to the Civil Service and to the Public Service Commission to the Civil Service Commission; references to the Comptroller and Auditor-General to the Auditor-General; and references to the Attorney-General in relation to criminal proceedings to the Prosecutor-General.

Courts and judges Existing courts will continue, and their judicial officers will continue in office without any need for vetting or confirmation [the example of the new Kenyan constitution was not followed by COPAC]. Until 22nd May 2020 the Constitutional Court will consist of the Chief Justice, the Deputy Chief Justice and seven other judges of the Supreme Court under the transitional arrangements that came into force on 22nd May this year [Constitution, Sixth Schedule, paragraph 16]. Only in 2020, therefore, will there be a Constitutional Court with its own judges, as envisaged by section 166 of the Constitution.

Holders of other “public offices” Existing holders of any public office [defined as “a paid office in the service of the State”] as at 22nd August continue in the equivalent offices under the same conditions of service. This covers civil servants, members of the police, Army and Air Force, Prison Service, etc.

Exceptions are:

• the Public Protector [formerly the Ombudsman]. There is no Public Protector in the Constitution, and any pending cases at the Public Protector’s office “must be transferred to the Zimbabwe Human Rights Commission for finalisation” [Sixth Schedule, paragraph 16].

• the Attorney-General. In terms of paragraph 19(2) of the Sixth Schedule, the person holding office as Attorney-General immediately before the 22nd August – Mr Tomana – will be the first Prosecutor-General. There will still be an Attorney-General, who will have no responsibility for prosecutions. Although the Constitution does not expressly say that the same person cannot be both Prosecutor-General and Attorney-General at the same time, it is implicit that the two positions must be held by different people. The President can remove the Attorney-General from office at any time and the Attorney-General sits in both Cabinet and Parliament [sections 114 and 115].

The Prosecutor-General is constitutionally independent and is appointed for a fixed term of 6 years, during which he or she enjoys security of tenure equivalent to that of a judge. i.e., is not removable at the pleasure of the President [sections 259 and 260]. This means that a new Attorney-General will have to be appointed to exercise the functions of the Attorney-General under section 114 of the Constitution – Government’s principal legal adviser, its representative in civil and constitutional proceedings and its chief legislative drafter, and with responsibility for other non-prosecutorial functions conferred on the Attorney-General by Act of Parliament, such as being the official curator ad litem [guardian of the legal interests] of persons detained under the Mental Health Act.

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied