Full Text: Thabani Mpofu responds to Madhuku analysis of Mohadi resignation

By Thabani Mpofu

1. This is a quick response to the “detailed” and “scholarly” opinion given by Professor Madhuku on the legal position pertaining to the applicability of s96(2) of the Constitution of Zimbabwe to former VP, Kembo Mohadi’s resignation. I will try to set out the law in as clear a manner as I can.

I will in this regard proceed on the assumption that this “response” will be consumed by lay people. For that reason, I have decided to go soft on “the technical”. It is not lost on me that modern constitutions are made for lay people, explaining why it is a constitutional imperative for the text of the constitution to be translated into vernacular languages.

Approach to constitutional interpretation

2 This matter is all about constitutional interpretation. There are so many principles that bear on the matter, some of which have been relied upon by Prof Madhuku. I do not intend to deal with all such principles. I will confine myself to those that concern this response. I will render the principles in my own words and give them my own form given my target audience. For that reason, I will call them processes. They are as follows:

2.1 The first step in constitutional interpretation requires one to consider the text of the constitution. It is the text that constitutes the constitution and not some indeterminate spiritual principle. If the text is clear on the subject matter, subject to what I will say below, effect must be given to it.

2.1.1 I must immediately indicate that Professor Madhuku’s approach is steeped in the English approach to constitutional interpretation. The British have no written constitution, that’s why they have “inner eyes” and obscure principles understood only by elites.

2.2 The second step is to consider all the provisions of the constitution that bear on a particular matter. The idea is that a particular provision, speaking to an issue must be understood in the context of the entire constitution. These provisions combine to create, the so called “spirit of the constitution”. The spirit of the constitution is something that can be understood by someone reading the constitution in ChiTonga and is not a preserve for lawyers. If all the provisions considered say one thing, that is the end of the matter. You don’t ask, “What has the inner eye seen?”

2.3 The third applies under circumstances where there is no clear provision bearing on the matter. If there is a power to be exercised or an obligation to be discharged, the question must be asked whether the exercise of that power or the discharge of the obligation or otherwise the enjoyment of a right is to be implied-see section 342 of the Constitution. This only happens if the constitution is silent on the matter. On the authority of section 342 however, there must be some constitutional conferment on the basis upon which an implied power is found to exist.

2.3.1 The need for implication lies in the fact that a constitution cannot cater for all conceivable legal eventualities. For that reason, it must be “a living organism” and those dealing with it must treat it in a manner that “eschews the austerity of tabulated legalisms”

2.4 These three principles explain Prof Madhuku’s reference to express and implied provisions, incorrectly called by him, terms. (Express and implied terms are found in contract law, interpretation deals with provisions)

2.5 Another principle of importance is that the duties imposed by the constitution on politicians must be clear. Put differently, politicians do not need to have “an inner legal eye”. The constitution must speak to them in clear terms. The framers of the constitution knew that there would be politicians like Hon……..(supply the name, I don’t want to risk an arrest). The following are the reasons for that position:

2.5.1 Grave consequences attend upon a failure by politicians to obey the constitution. Any constitutional obligation that might lead to consequences being visited upon politicians must be clear. It must be clear to the politician reading the constitution in the “Buhera dialect of Shona”

2.5.2 A constitution is a political document. That being the case, on questions of governmental power, it must speak in clear terms to the citizens against whom or for whose benefit political power is exercised.

2.6 This evidently, and as you have already noted, is not the approach taken by Professor Madhuku. Professor Madhuku takes the constitution to be an elite document which can only be understood by 3000 people in this country. Ngeke.

The constitutional position on the subject

3 Our constitution has two types of provisions governing the subject matter, and once again I speak in lay terms. The first are the provisions contained in the “substantive part” of the constitution. The second, are the provisions contained in the schedule, which are transitional in nature.

3.1 The purpose of transitional provisions is broadly speaking the following:

3.1.1 To retain the legality of that which was substantively legal under the old order.

3.1.2 To retain the legality of constitutional officials who had lawful authority under the old order and which must be carried into the new.

3.1.3 To fill in gaps that would inevitably exist between what used to be and that which now is.

3.1.4 To transition to the new in as smooth a manner as is possible.

3.2 In that regard, the constitution recognises that for the first ten years reckoned from 2013, an executive structure with unelected Vice Presidents will be in place. This is dealt with in the sixth schedule and is a continuation of the old.

3.3 The provisions governing unelected Vice Presidents, are however, set out in both the substantive part of the constitution as well as in the transitional provisions. It is important for purposes of illuminating the subject matter that the provisions set out in the schedule be identified, isolated and their effect spoken to:

3.3.1 Paragraph 14(1) which provides that in the first ten years reckoned from 2013, there wont be any running mates.

3.3.2 Paragraph 14(2) which provides that a person elected in the two elections (2013 and 2018) must nominate not more than two Vice Presidents who must hold office at his pleasure.

3.3.3 Paragraph 14.3 which provides the manner of the exercise by the Vice President of the role of Acting President.

3.3.4 Paragraphs 14.4 and 14.6 which provides for succession in the event of death of the President.

3.4 What must be noted is that the sixth schedule restricts itself to formal issues. There is nothing that speaks for instance to the values that must govern a VP. There is nothing that speaks to VP’s obligations, or even terms of service.

To say that a VP is only governed by the sixth schedule to the exclusion of the substantive body of the constitution is to claim without a basis, that both a VP and his/her president do not in the first ten years have any form of constitutional restraint placed upon them.

3.5 The substantive portion of the constitution also has provisions that pertain to Vice Presidents. It is easy to see which provisions apply to an elected VP, which provisions apply to an unelected VP and which provisions apply to both.

This with respect and in my view, is where Prof Madhuku has not done justice to the subject matter. The need for the provisions to be considered in that manner assumes ascending importance when one has regard to the limitation(s) of the sixth schedule as already set out above.

3.6 I will quicky go through the relevant provisions: 3.6.1 Sections 91, 92 and 93 deal with qualifications for election to the office of VP. This will obviously take effect after the first ten years.

3.6.2 Section 94 which deals with assumption of office upon the taking of the oath of office before the Chief Justice or the next available senior judge. I believe Mohadi took this oath of office and that it was important that he does so before executing any constitutional function. This provision applies to both elected and unelected VPs. (If I am wrong on this one I enjoy the CJ’s company).

3.6.3 Section 96(2) deals with resignation. This is the only provision that deals with the resignation of a VP. The sixth schedule is silent on the matter. There is nothing that limits the applicability of this provision to an elected VP. To hold otherwise would leave the constitution, for no good reason, without a provision which regulates the resignation of a VP. That is both dangerous and unnecessary.

3.6.3.1 I must point out that Robert Gabriel Mugabe, correctly resigned in terms of section 96(1). It would be absurd to say a president can resign in terms of section 96(1) but a VP cannot resign in terms of section 96(2). In fact, if Professor Madhuku is correct, then Mugabe did not resign and ED’s assumption of office and everything that has followed such assumption is tainted with illegality. Varasiki, benefit from the wisdom of the Shona, “Chenjera kufarira n’anga neinobata mai”

3.6.4 Section 97 deals with the “impeachment” of a VP. There is no similar or equivalent provision in the schedule. This provision applies to both elected and unelected VPs given that both can be impeached. To hold otherwise would leave us with a constitution which does not allow for the “impeachment” of a VP during the first ten years. That’s simply absurd.

3.6.5 Section 99 deals with the functions of a VP. There is no doubt again that this relates to both an elected and unelected VP given that both exercise functions. Indeed, the sixth schedule does not deal with this issue. It would be infantile to argue that this provision does not apply to an unelected VP. Elected or unelected, a VP must discharge a constitutional function.

3.6.6 Section 100 deals with the exercise of functions by an Acting President as well as the mechanics that attend upon the issue. To the extent that there is a competing provision in the sixth schedule, it is that provision that takes effect by reason of paragraph 2 of the sixth schedule. Put differently, s100 only governs elected VPs.

3.6.7 The same goes for s101 which deals with succession in the event of death. 3.6.8 Section 102 deals with the remuneration of Vice Presidents. Although the sixth schedule says nothing about the matter, it is clear that a VP must be remunerated. This provision accordingly governs both elected and unelected VPs.

3.6.9 Section 103 provides that a serving or former VP must not hold any other paid employ either during the period of their service or after the expiry of such service, if they are still receiving a state pension. It goes without saying that this pertains to both elected and unelected VPs.

3.6.10 Section 106 is a Code of Conduct for both VPs and Ministers. There is no similar Code in the schedule. Any executive official must submit themselves to the wholesome restraint of the constitution. This pertains to both elected and unelected officials.

3.6.11 Section 107 deals with the accountability of VPs to the President. It is puerile to argue that it is only elected VPs who are accountable to the President and that those that serve at his pleasure are not so accountable. This provision also deals with the obligation cast upon VPs to attend Parliament. That obligation is upon both elected and unelected VPs.

3.7 It is therefore clear upon a consideration of the substantive text of the constitution that there are provisions that (i) pertain to both elected and unelected VPs and (ii) those that only pertain to elected VPs. The dispute has to be on how section 96(2) is to be characterised. To that issue, I turn.

The relevant transitional structure

4 With these provisions having been identified, it is important that we consider first, whether the constitution helps us answer the question regarding the status of s96(2). Put differently, the question has to be whether s96 has commenced its operation.

4.1 I believe, with respect, that Professor Madhuku has on this aspect chosen to rely on esoteric quackery and sophistry, ignoring in the process the relevant constitutional provisions. In particular, Professor Madhuku argues on implied powers and the whole lot whilst ignoring a specific provision that governs the matter.

He has committed a cardinal sin of interpretation. You can’t “play football without a football”. Professor Madhuku has interpreted the constitution whilst ignoring the most relevant constitutional provision governing the subject matter. As indicated, ours is not like the British system where the constitution is unwritten.

4.2 Paragraph 3(1) of the sixth schedule sets out provisions which came into operation on the publication day being the 22nd of May 2013. These are the provisions that immediately became law when the constitution was assented to and published. Not all provisions of the constitution became law upon the publication of the constitution.

4.3 Paragraph 3(2) provides as follows: Except as otherwise provided in this Schedule, the rest of this Constitution comes into operation on the day on which the President elected in the first elections assumes office.

4.4 You will need to recall the distinction that I drew earlier between the two types of provisions constituting our constitution, the substantive text and the transitional provisions. This provision says and means that the rest of the constitution (substantive text) came into effect in August 2013. What is only excepted are those provisions set out in the schedule which will come into effect after the expiry of the ten years constitutionally provided for.

4.5 The schedule sets out those provisions, which will come into effect after ten years, either directly or indirectly. The fact that there are three dates on which provisions of the constitution will come into effect needs to be emphasized.

4.6 In those instances where the schedule clearly states that it has precedence, it takes effect-see paragraph 2 of Part 1 of the sixth schedule. See for instance paragraph 14.1 which provides, “Notwithstanding section 92….” In clear terms, the schedule provides that whatever the substantive text says, in that instance, it takes effect. This is an instance where the schedule directly deals with the matter as envisaged by paragraph 3(2) cited above.

4.7 The schedule does also deal indirectly with the matter where it establishes “a system” based on an unelected Vice President. What this means, is that the provisions in the substantive text that deal with an elected Vice President are automatically excluded. I have already set out those instances above. Everything else applies.

4.8 Indisputably, the question of resignation is not dealt with either directly or indirectly. That being the case and consistent with paragraph 3(2), the substantive text has now taken effect. Section 96(2) is the “rest of the constitution” in the words of paragraph 3(2) cited above.

It is alive. “The inner legal eye”

5 Unable to deal with the transitional provision which is clear to the naked eye, Prof Madhuku has now created what he calls an “inner legal eye”. He is supposed to have this eye and everyone else who disagrees with him doesn’t have it. With respect to a man of great learning, a naked eye can see the applicable provision that has been missed by his “inner legal eye”.

5.1 This resolves the express and implied provisions debate. You cannot imply the absence of a duty under circumstances where the duty is expressly provided for. The effect is that Professor Madhuku’s efforts have nothing to do with interpretation but are an act first of de-creation, in that he destroys an extant provision, and second, of creation, in that he creates using a dubious inner legal eye.

Only to an elected VP

6 Professor Madhuku’s inner legal eye sees him conclude that the obligation to notify only pertains to an elected VP. He reasons that the fact of the election obliges the existence of such a duty. He relies on no constitutional provision for this breath-taking view. There are so many problems with this conclusion and I only highlight two:

6.1 First, it plainly does not make sense. The VP is a high ranking constitutional official who assumes the powerful position of the President on occasions. The nation must obviously be advised of his resignation within a period of 24 hours of its occurrence? Why should that be tied to an elected president? Does a VP, in the first ten years of the constitution exercise lesser powers than those of an elected VP?

6.2 Constitutional construction in a constitutional democracy is all about placing obligations and restrictions on the executive. This is how, executive power is kept in check. This approach is taken at all times and for all purposes unless the placing of such obligations or restrictions is unduly burdensome or onerous. What is unduly burdensome about notifying the country that a VP has resigned? Quite frankly its such a shame that I have to make this point against Professor Madhuku.

What I accept

7 In the interests of fairness, it is important that I set out what I consider to be the correct legal position(s) as expounded by the Professor. I am content, as a general position to say that I accept the correctness of most of the principles that he places reliance upon. It is their relevance to this matter that I query, particularly given the disconnect between those principles and the clear and operative legal provisions at play. I do not accept however, that there is an inner legal eye that must see things that are not and ignore those that are.

7.1 For the avoidance of doubt, I accept as sound in law, the following propositions:

7.1.1 That constitutional interpretation is a matter of dealing with express and implied provisions subject to the rider that express provisions must at all times and without prejudice, take effect.

7.1.2 That even if a power, duty or right is not expressed, it can by proper interpretation be implied but only in terms of section 342 of the Constitution. Put differently, there must always be a substantive provision on the basis upon which the implication takes place.

7.1.3 That there are provisions in the constitution which indisputably speak only to elected Vice Presidents.

Conclusion

8 My conclusion is that Professor Madhuku’s views are at best specious. My point of departure is that he seeks to imply under circumstances there is an express provision. In doing so, Professor Madhuku ignores a relevant provision which in the very least, he was obliged to have explained away.

I also come to the conclusion that the application of section 96(2) to an unelected Vice President, is not inconsistent with the constitutional design and, just like other similar provisions bearing on the issue, has now taken full effect. In the result, I come to the conclusion that ED violated the constitution in not informing the country that former VP Mohadi had resigned.