A person appointed as a Minister from outside Parliament in terms of section 104(3) of the Constitution of Zimbabwe, 2013 does not vacate his or her office as a Minister upon being elected a Member of Parliament.
A person who is appointed from outside Parliament does not become a Member of Parliament. He or she is only entitled to sit and speak in Parliament, but without a vote: section 104(5). He or she has the same status in this regard as a Vice President or an Attorney General.
The only circumstances in which the office of a Minister becomes vacant are specified in section 108.
Every Minister, whether appointed from in or outside Parliament, ceases to be a Minister if (i) fired by the President, (ii) he or she resigns or (iii) a new President assumes office.
Outside the above three situations, section 108 draws a distinction between ministers appointed from Parliament and those appointed from outside Parliament. A Minister appointed from Parliament automatically vacates office as a Minister if he or she loses his or her seat in Parliament: section 108(2). A Minister appointed from outside Parliament remains a Minister if he or she gains a seat in Parliament because subsection 4 of section 108 does not require such a Minister to vacate office in those circumstances. On the contrary, the principle in the constitution is that such a Minister`s position is strengthened when he or she gains a seat in Parliament.
The President is only allowed to appoint a person from outside Parliament on the basis of that person`s “professional skills and competence”. In other words, the President must only appoint persons from outside Parliament if he/she is of the opinion that there are no such professional skills or competencies in Parliament. The President is limited to only 5 such Ministers. Thus, if some of the Ministers find seats in Parliament, the spirit of the Constitution is satisfied and the President may either not appoint new Ministers from outside or look for other skills still missing from Parliament to maintain the quota of 5(for outsiders).
There is no new procedure required for a Minister appointed from outside Parliament to continue with his or her duties after gaining a seat in Parliament.
Regarding the reports surrounding Minister Jonathan Moyo, if it is true that some advice were given to the President suggesting that he ceased being a Minister upon becoming a Member of Parliament, that advice would certainly be an incorrect reading of the Constitution.
The wrong advice may have stemmed from one or both of two situations. The first situation may be that the advisers thought he became a Member of Parliament upon being appointed a Minister and therefore ceased to be a Minister in terms of section 108(2). As already indicated, a person appointed to be a Minister from outside Parliament does not become a Member of Parliament.
The second situation is that the advisers may have misunderstood section 108(3) which provides as follows:
“.. a Minister or Deputy Minister who was not a Member of Parliament on appointment as Minister or Deputy Minister vacates his or her office as such if circumstances arise that would result in his or her seat becoming vacant were he or she a Member of Parliament.”
This provision refers to some aspects of section 129 such as ceasing to be qualified for registration as a voter, being declared insolvent and being convicted of certain offences. The provision has no application whatsoever to the issue of gaining a seat in Parliament.
There are only two legal ways in which Jonathan Moyo may vacate office as a Minister in the current circumstances. These are (i) being fired by the President and (ii) himself resigning.
PROF LOVEMORE MADHUKU
24 JUNE, 2015Post published in: Analysis