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To the President of the Republic of Zimbabwe, Cde ED Mnangagwa

14 Aug 2020 at 07:51hrs | Views
RE: Legal Opinion on the Constitutionality of the Appointment of Vice-President Rtd Gen. CGN Chiwenga as substantive Minister of Health and Child Care.

Dear Cde President,

The legal fraternity was thrown into confusion last week when the Chief Secretary to the President and Cabinet, Dr Misheck Sibanda announced the appointment of Vice-President Rtd Gen CGV Chiwenga as the new Minister of Health and Child Care. What followed were conflicting views of a number of those regarded as the top legal minds in the country with regards to the constitutionality of this development.

Whilst Adv. Biti and Adv. Mahere were of the view that this appointment is unconstitutional citing section 103 of the Constitution, they seem to have been silenced by the argument of the constitutional lawyer Prof. Madhuku as concurred by Adv. Thabani Mpofu, that the appointment was legal and therefore constitutional citing that a similar case had been decided by the Court and upheld that section 103 must be read together with section 99. This case had been brought before the courts to challenge your presiding over the Ministry of Justice when you were in office as the Vice-President under your predecessor a few years ago.

This communiqué seeks to revisit the very constitutional provisions from which your authority was derived from in making the appointment, only then can an accurate conclusion be arrived at about the constitutionality of the appointment. This is very important as it has, firstly, the potential to affect the validity of all the decisions, activities and functions that the Vice-President will undertake from 4 August 2020 until the date and time you will find it necessary to appoint someone else in that position of Minister of Health and Child Care. Secondly, I believe you and the country stands to benefit immensely if the constitutional supremacy is upheld in its sacrosanct shroud.  The country at the moment is being vilified the world over as failing to uphold constitutional human rights, and so it cannot afford to let slip and give the same critics more fodder to fuel the disparagement.

We understand Mr President, that we are in a time of a crisis with the Covid-19 pandemic ravaging economies of the world including ours to the ground, and yet we will stand to lose more should it be found at a date in future that all the actions of the Vice-President in the present critical Ministry of Health were invalid to the extent of their inconsistency with the constitution, needing a reversal of all such actions which will definitely come at a huge monetary and logistical cost to the fiscus. It is therefore imperative that as a citizen of our beloved country, I invite you to revisit the appointment through the lenses which I will depict and clarify below.

Section 103 of the 2013 Constitution of the Republic of Zimbabwe provides that the incumbent President and Vice-Presidents, shall not directly or indirectly hold any other public office or be employed by anyone as long as they are still in office. The same provision also stipulates that a former President and Vice President shall not directly or indirectly hold any public office or be employed by anyone as long as they are earning their pension benefits.
Section 104 (1) then provides that the president has the authority to "appoint" Ministers and to assign functions to them, including the administration of any Act of Parliament, Ministry or Department. It goes further to say the President may reserve for himself or herself the administration of an Act, Ministry or Department. From this subsection (1) it is clear there are two distinct roles, appointment or administration. While Ministers are to be appointed to act as substantive Ministers, the President himself can only administer a Ministry, Department or an Act. Therefore the President cannot be appointed as Minister for practical reasons, that the President cannot appoint himself as a Minister and swear himself in, as Ministers are sworn in by the President. Further, it could also have been a reason that the office of the President is so much involved such that to also be responsible for a Ministry full time would be wearisome.
However, section 103 clearly puts the Vice-Presidents in this same bracket as well, by stipulating that they cannot hold any other public office directly or indirectly as long as they are in office, or receiving pension benefits.

Section 99 of the same Constitution then provides that the Vice-Presidents, assist the President in the discharge of his or her functions and any other functions, including the administration of an Act, Ministry or Department that the President may assign to them. Read with section 104 above, the functions of a President with regards to an Act, Ministry or Department are only limited to administration and not appointment. This is why section 104 (1) says the President may reserve for himself the administration of an Act, Ministry or Department. So if the duty of the Vice-Presidents is to assist the President in his functions, it means the Vice-Presidents can also ONLY administer an Act, Ministry or Department. The Vice-Presidents therefore, cannot do what the President cannot do with regard to an Act, Ministry or Department.

The same Section 99 clearly provides that the Vice-Presidents are to carry out functions assigned to them, with regards to the administration of an Act, Ministry or Department. The Vice-Presidents can only carry out the functions assigned to them. The biggest questions would be, is assigning the same as appointing and, what is the difference between the functions of an assignee and those of an appointee? The answer is found in section 104 (1), which provides that the President appoints Ministers, and assigns functions. It is functions which are assigned, not an appointment. Therefore if the Vice-Presidents can only be assigned functions of an Act, Ministry or Department, it means they cannot be appointed as Ministers. To answer the second question, an assignee only administers as an administrator whereas an appointee will act in substantive capacity as the Minister. This is what section 104 (1) provides for.

The practical implication of section 99, read with section 103, read with section 104 (1) is that the Vice-Presidents can only administer an Act, Ministry or Department and cannot be appointed as substantive Ministers. Therefore, the appointment of Rtd Gen. CG Chiwenga as substantive Minister of Health and Child Care is unconstitutional and invalid.

As a citizen of the Republic of Zimbabwe, I therefore appeal to you as the President of the Republic and Head of Government, to rectify this constitutional anomaly. We also call on the Minister of State in the Office of the President to demand better from the legal minds advising the office of the President as it is now reflecting badly on the office. In 2017 more than the allowed number of cabinet members outside parliament was appointed in violation of the constitution. The extra cabinet members eventually had to be deployed in other positions outside cabinet. Such rectification was necessary to acknowledge and uphold the supremacy of the Constitution of Zimbabwe, as is the necessity even in this present case. Zimbabwe's democracy is founded on the pillar of constitutionalism and rule of law and to depart from this plinth would be a most unfortunate situation as it will damage the compass of the very democracy we are mandated to protect and uphold.

Thank you very much.


Robert Sigauke is a Legal Manager based in Johannesburg. He writes in his personal capacity.

Source - Robert Sigauke
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