Why Tsvangirai is right on GPA and Constitution

By Sanderson N Makombe

The recent spat between President Mugabe and Prime Minister Tsvangirai has led to a host of false legal opinions being splashed without care and due legal analysis and discourse.

The most absurd interpretation was the moronic gibberish muttered by Rugare Gumbo, the ZANU PF spokesman, who I quote, reminded all and sundry that ‘It should be made clear that the GPA itself is not part of the Constitution of Zimbabwe’.

He goes on to say ‘there is nowhere in the constitution of Zimbabwe or GPA which says President must consult and get consent of the Prime Minister in making key appointments’.

Another ‘legally challenged’ article by ZANU PF sympathiser Itayi Garande appeared in the Guardian, postulating the same, arguing the GPA is only a ‘good faith document’.

He concludes Mugabe can unilaterally do as he wishes using his executive powers as before commencement of the inclusive government. Nothing can be further from the truth.

Firstly it is true to some extent that the GPA is not part of the Constitution of Zimbabwe. However, some provisions of the GPA, as stipulated in the Interparty Political Agreement found expression in the Constitution of Zimbabwe in December 2008 as Constitution Amendment No 19.

To that extent those provisions as stipulated, are enshrined in the Constitution of Zimbabwe, an enshrinement which perpetuates as long as the Inclusive Government is in subsistence.

Section 115 of the Constitution, on Transitional Arrangements (Schedule 8),subsection (2), states ‘Schedule 8 shall have effect from date of commencement of Constitution of Zimbabwe Amendment No 19,2008, and continue in force during the subsistence of the Interparty Political Agreement.

If the ZANU PF spokesman does not know this, God knows whether he has a functional head at all. Amendment No 19 diluted some of the powers previously held by the state President and this is made explicit by Sec 115, subsection (3), which states that

‘the provisions of this constitution shall, for the period specified in subsection (2),operate as amended or modified to the extent or in the manner specified in Schedule 8.’

A straightforward example of the conjunction of the old constitution without amendment No 19 and the one which includes can be discerned from the powers conferred upon the President on the dissolution of Parliament.

Before the amendment, the President, under Part 3, (5) (a), could dissolve parliament without approval of cabinet or anyone else. This provision is still valid but only suspended because Under Transitional Arrangements brought about by Amendment No 19, at 20.1.3, the President now ‘may, in acting in consultation with the Prime Minister dissolve parliament.

To those borrowing Rugare Gumbos mantra, they would rather ignore implications of amendment No 19 and still claim Mugabe has absolute executive power as before the amendments to dissolve parliament.

The provisions which found expression in the constitution are mainly contained in Schedule 8 of the same constitution. Notably, Schedule 8 details the powers of the President and also those of the Prime Minister.

The major areas of disagreement are stemming from the unilateral appointments of the Attorney General, the Reserve Bank Governor, the reappointment of Provincial Governors and appointment of Ambassadors.

It has been foolishly argued by Gumbo that President Mugabe has executive powers to appoint these without consulting with the Prime Minister. Playing on semantics, he further states the governors and ambassadors were simply reappointed, transferred or otherwise. Again this is erroneous.

Under Schedule 8,Powers of the President, at (P),it is stated the President ,’in consultation’ with the PM, makes ‘key appointments’ the President is required to make under the terms of the constitution or any other act of parliament. The key wording in this clause is ‘in consultation’.

The phrase is defined on Sec 115 (1) (a) as meaning ‘the person [president in this case] is required to consult before arriving at a decision after securing the agreement or consent of the person consulted’. Surely no spin can hide such a blatant exposition .It does not require the wisdom of the Godfather to understand this.

For the avoidance of doubt, under the same subsection, a reference to the power to appoint key person (s) to any public office is required to be ‘construed as including a reference to the like power of (a) to reappoint to that office, (b) to appoint him or promote or transfer to that office.

Rugare Gumbo is quoted saying the governors were simply reappointed as if this provision only applies to appointment of new governors, which is wrong.

‘In consultation’ can readily be contrasted with another phrase commonly used in the same constitution, ‘after consultation’. The difference being, where ‘after consultation’ is used, the person required to consult is not bound by the advice or consent or opinion of the person consulted, again as provided by 115 (1) (a).

Despite the non binding aspect of the advice, opinion or consent, it is still a procedural requirement that a consultation process or event be initiated. It remains a procedural requirement and where it is not done, the process is unconstitutional.

Lastly, the drafters of the Constitutional Amendment No19 must have foreseen the present difficulties and expected certain groups to try to wiggle out of the binding nature of the amendment.

It duly then provided under schedule 8 (1) that for the avoidance of doubt, the following provisions of the Inter party Political Agreement, being XX thereof, shall during the subsistence of the Inter party Political Agreement, prevail notwithstanding anything to the contrary in this constitution.

The Prime Minister is very correct in asserting that some of the appointment, reappointments were done unconstitutionally. However it should also be noted that appointments done before Amendment No 19 might legally not be challenged using provisions contained in Schedule 8.

Rugare Gumbo and those who borrow his skewed line of thinking must not try to hoodwink the public by hiding behind constitutionalism. Rather, he should just have stated the obvious, which is that ZANU PF does not care about constitutionalism.

Let Gumbo be reminded that there is currently is no legitimacy outside the GPA.  Mugabe and ZANU PF lost the last election, only to be saved by the brutality of the gun and Mbeki’s machinations.

The writer can be contacted at [email protected]