THE National Constitutional Assembly (NCA) yesterday approached the Constitutional Court seeking to block Mugabe’s appointment of vice-presidents, arguing this was unconstitutional.
Mugabe appointed Emmerson Mnangagwa and Report Phelekezela Mphoko as his deputies in the party and they will most certainly be appointed as the country’s vice-presidents.
NCA, however, argues the impending appointments are unconstitutional and illegal, as Mugabe was acting contrary to the law.
Lovemore Madhuku, the NCA chairperson, in his founding affidavit obtained by Southern Eye, cited Mugabe, Mnangagwa and Mphoko as the first, second and third respondents respectively.
Madhuku said Mugabe was only supposed to appoint at most two vice-presidents immediately after he was sworn-in last year, according to the law.
“The option of the president to appoint one or two vice-presidents is only exercised soon after the president is sworn into office,” he said.
“Once the president has decided to appoint one vice=president, he cannot change his mind and have two vice-presidents during the same term of office.
“The president cannot replace vice-president (Joice) Mujuru with two vice-presidents.”
Madhuku argued the Constitution says the president must appoint his deputies without delay, meaning once he had appointed them, he could not appoint another.
“This is what paragraph 14, sub-paragraph 2 of the Sixth Schedule to the Constitution says,” he continued.
“In specific terms, it says without delay the person elected as president in any election referred to in subparagraph(1) must appoint not more than two vice-presidents, who hold office at his or her pleasure.”
“‘Without delay’ is a very clear expression.
“The nation must know, right from the start whether the president will have one or two vice-presidents.
“Once he makes his decision, he is not given power to change his mind during the course of his five-year term.
“This is perfectly sensible.”
Madhuku said Mugabe made his mind last year and could no longer appoint another.
He also said the significance of the expression “without delay” was to force the president to make a choice at the beginning of the term.
“Once he makes his choice, he is bound for the entire duration of his five-year term,” he said.
Madhuku said Mugabe should instead have tried to explain to Zimbabweans why he wanted to break the law before appointing his deputies.
“Alternatively, even if the president were to have the power to change his mind, he could not do so without explaining to the nation the reasons for having two vice-presidents when the nation has operated with one vice-president for one-and-a-half years,” he argued.
“His explanations are required for him not to infringe the right to administrative justice protected by Section 68 of the Constitution of Zimbabwe, 2013.”
Madhuku said Mugabe was only “exclusively” concerned about solving Zanu PF’s power tussles at the expense of the nation and the Constitution.
“The first respondent must be told by a declaration of this honourable court that for the duration of his five-year term ending in 2018, he can only appoint one vice-president,” he continued.
“If the first respondent would have appointed two vice-presidents by the time this matter is determined, the appointments must be declared unlawful.”
Meanwhile, Madhuku in an interview said Mugabe was taking advantage of loopholes in the Constitution to appoint Mphoko as vice-president, as he was neither a Senator nor an MP.
“The fact that the Constitution does not state that a vice-president should be an MP or Senator does not mean that Mphoko cannot be vice-president,” he explained.
“However, it was an oversight when the Constitution was crafted.
“My understanding is that for the next 10 years, a vice-president can be anyone who meets the criteria of a vice-president.
“It is my view that Mugabe is taking advantage of a loophole.”