PRESIDENT Robert Mugabe was not properly advised over former Vice-President Joice Mujuru’s continued stay in Parliament, as he should have declared a by-election in her constituency within 90 days of her appointment to the vice-presidency, law experts have said.
The lawyers said Mujuru’s seat should have been declared vacant when she was sworn in as vice-president and there was need to acknowledge that errors had been made.
Constitutional law expert, Alex Magaisa on his blog, said there was need for Mugabe and Speaker of Parliament, Jacob Mudenda, to take responsibility and correct wrongs.
“The point is that when an MP becomes a vice-president, his seat becomes vacant in terms of the Constitution,” he wrote.
“This means Mujuru’s seat became vacant last year and Mnangagwa’s seat is also now vacant.
“The fact that a by-election was not called in terms of Section 158 (3) of the Constitution, means there was a breach of the Constitution.
“The president is supposed to call elections in terms of Section 110 of the Constitution.”
Magaisa said the president was not properly advised and failed to uphold the Constitution.
He said Mudenda should have declared the vacant seat, while Mugabe called for a by-election.
“The president has a duty to uphold and defend the Constitution,” Magaisa said.
“This matter needs correction and acknowledgement of errors.”
It is now unclear whether the seat fell vacant immediately after Mujuru was appointed or there had to be a formal declaration of the vacancy.
Mugabe and Mudenda allowed the Mt Darwin West seat, which Mujuru holds, to remain vacant for nearly a year after failing to call for a by election at least by December 12 2013 according to the law. Section 129 (1)(c) of the Constitution, states that the seat of an MP becomes vacant upon the member becoming president or vice-president.
Mujuru was appointed vice-president on September 11 2013, making her seat vacant and by law, Mudenda was supposed to declare the seat vacant with Mugabe constitutionally proclaiming a date of a by-election within 90 days.
MDC-T spokesman and lawyer Obert Gutu concurred with Magaisa, saying the breach of the Constitution was nothing new because it was in the Zanu PF DNA to breach when it was convenient for them.
“What we have is a Constitution, but without constitutionalism,” he said. “This is the hallmark of Zanu PF. They duck and dive every time they see a constitutional provision which does not suite their needs.”
Gutu said Mugabe and his party had failed to adhere to a number of constitutional provisions including the stipulation to create provincial councils.
“They have clearly ignored the concept of devolution and provincial councils,” he said. “Thirteen months after the election we still don’t have an enabling Act because Zanu PF is uncomfortable with this provision.”
Former Copac co-chairperson Douglas Mwonzora said the provision was very clear and cannot be read otherwise.
“We should have had a by-election in Mt Darwin West and now another by election should be held in Chirumanzu-Zibagwe, but that did not happen. It is only emerging now because of sour grapes within Zanu PF,” he said.
But worryingly, the opposition failed to identify the anomaly and allowed it to persist for more than a year.