Legal Brief on the Prof Moyo’s Cabinet situation

This is a quick note to provide a legal explanation around the current situation of Prof Jonathan Moyo, whom reports say has been relieved of his Governmental functions.

Jonathan Moyo
Jonathan Moyo

Details of what has transpired are not clear at present. One view is that he has been sacked. The other perspective is that what has happened is merely procedural and that he will bounce back into cabinet.

The purpose of this note is to explain the law around the appointment and removal of Cabinet Ministers as provided for in the Constitution. The aim is to respond to the numerous inquiries from the media and members of the public regarding the legal aspects in this scenario

First, it is trite that in terms of the Constitution, all cabinet ministers are appointed by the President at his discretion in terms of s. 104 of the Constitution.

It is also trite that Cabinet Ministers serve at the pleasure of the President. They can be hired and fired at any time. To use made famous by Moyo himself the last time he was fired from Cabinet in 2004, “he who appoints also has the power to disappoint”.

Therefore, President Mugabe has the power to sack Moyo if that is what he has done. There is little recourse in such a case as one cannot force himself upon the President. This would explain what has happened if indeed he has been sacked. However, there is a view that this is simply a procedural requirement. Let us look at this explanation.

In terms of s. 104(3) of the Constitution, Ministers are appointed from among Members of Parliament. However, up to 5 chosen on the basis of their professional skills and competence may be appointed from outside Parliament. They are all of equal status, whether from Parliament or from outside Parliament. Moyo was among the 5 who were appointed under the Presidential appointment facility because he had lost the Tsholotsho North seat in the 2013 elections. Therefore, he served as a Minister, although he was not an MP.

However, his situation changed last week when he contested and won the Tsholotsho North seat following a by-election. Moyo was duly was sworn in as an MP following his victory.

Did this change in his situation from non-MP to MP affect his seat as a Cabinet Minister? It didn’t have to affect his status if President Mugabe still wanted him to remain as Minister.

Did it mean he could no longer be a Cabinet Minister under the facility through which he was initially appointed in 2013? Technically, yes. Moyo no longer needed the Presidential appointment facility under s. 104(3) to serve as a Minister. Instead, he could now be one of the Ministers drawn from Parliament. This would actually free up one space, allowing the President to appoint another person in that space, should he wish to do so. Moyo could remain as a Cabinet Minister, but now as a Member of Parliament.

Did this require Moyo to be relieved of his functions as a Minister, only to be re-appointed later?

If one wants to be pedantic, this would be the procedure but it is really no different from a Cabinet reshuffle. You don’t have to go through an elaborate ceremony of removing Ministers and re-appointing them again in a Cabinet reshuffle. What would be the point of all that?

If indeed, the President’s intention is to retain him, he could have easily avoided the drama that has accompanied the occasion by doing a straight-swap, literally moving the chairs or, in other words, moving Moyo from the one chair of Minister as a non-MP to the chair of Minister as an MP. It would have been quick, bloodless and without all the drama. Moyo would still be exercising his functions as Minister, rather than a situation where he has had to go home and await re-appointment.

This might suggest that there is more to it than mere procedure. If it is merely procedural, then the Government has created unnecessary drama. There is fertile ground to speculate that this is more than just a procedural matter.

It’s probable that President Mugabe might be unhappy over something or he might want to use this occasion to do a Cabinet reshuffle, which is entirely at his discretion. He might have another portfolio in mind for Moyo, which might explain why he has not followed the simple and straightforward procedure of a straight swap. He might be opening up space for a preferred candidate, perhaps the First Lady herself?

There can be all sorts of speculation as to what President Mugabe is up to and why he has done this. Has he sacked Moyo for good? Or is he merely following procedure? Will Moyo bounce back as Information Minister or will he return in another portfolio? Will he return at all? Is this all part of the succession battles within Zanu PF? We just don’t know.

What is clear at law however, is that the President has the power to appoint and he also has the power to remove. The next few hours or days will reveal more fully what has transpired along Samora Machel Avenue in the corridors of the grand old buildings called Munhumutapa.

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