Analysis: What will the Magaisa, Madhuku debate reveal in the end?

By Gibson Nyikadzino | Nehanda Politics |

The constitutional interpretation of Section 96(2) of Zimbabwe’s Constitution (Amendment 20) has raised debate on the correct interpretation of the law when a Vice-President resigns.

The debate follows the resignation last week of Zimbabwe’s former Vice-President Kembo Mohadi after his leaked sexual conversations with married women. Upon Mohadi’s resignation, Presidential Spokesperson George Charamba said the resignation had been tendered before officially announcing it on March 1, 2021. From Charamba, Mohadi resigned around February 23, 2021.

The debate on what was or is the correct interpretation of Section 96(2) has drawn Kent-based Zimbabwean academic Dr. Alex Magaisa, University of Zimbabwe (UZ) law lecturer Professor Lovemore Madhuku, Advocate Thabani Mpofu and Political Scientist Professor Jonathan Moyo.

Prior to Dr. Magaisa’s first opinion in his Big Saturday read, Prof. Madhuku had told the media that Section 96(2) does not apply to the current Vice-Presidents.

Section 96(2) states that: “A Vice-President may resign his or her office by written notice to the President, who must give public notice of the resignation as soon as it is possible to do so and in any event within twenty-four hours.”

Dr. Magaisa interrogated the issue saying Zimbabwe’s President Emmerson Mnangagwa was in constitutional breach for failing to announce to the nation that his deputy had resigned within twenty-four hours of receipt of the resignation.

His view on interpreting the said clause has been accepted by Advocate Mpofu and Prof. Moyo. Prof. Moyo went further on Twitter announcing “Prof. Madhuku should be professional and admit he was wrong.”

According to Dr. Magaisa, the reading of the constitutional clause is affirmative that President Mnangagwa was in breach of the constitution because he failed to announce Mohadi’s resignation within a day. He says the notice to resign creates an obligation to the President to announce the resignation.

To this view, Prof. Madhuku maintained that the reading by Dr. Magaisa of Section 96(2) is wrong because it does not apply to the current vice-presidents.

Dr. Magaisa said: “We must start by disposing of the argument that Section 96(2) does not apply to the current Vice Presidents” but he conceded that, currently, in terms of section 14(2) of the Sixth Schedule, a Vice President serves at the pleasure of the appointing authority, who is the President.

Shallow and Simplistic

That Dr. Magaisa’s legal opinion has been generally accepted by those who are following the debate, it has been blemished in the eyes of Prof. Madhuku. Adding his opinion, Prof. Madhuku first dismissed his counterpart’s argument as “shallow and simplistic, unless meant for Twitter.”

According to Prof. Madhuku, Dr. Magaisa’s reading of the clause under scrutiny does not look at the “implied” provisions of the constitution, but only focuses on its “express” provisions.

The difference between the two, according to Prof. Madhuku, is that the express opinions are what is written in the constitution while the implied expressions require an “inner legal eye” as it seeks to look at what the framers of the constitution wanted to say.

The opinion by Prof. Madhuku shifted the debate to a philosophical nature, beyond the scope of what people see, adding: “we cannot resolve a constitutional issue merely by starting and ending with what the constitution says.”

“What is unacceptable is to treat the Constitution as a simple legal document that starts and ends with its express provisions: proper constitutional meaning comes from the interplay between express and implied provisions,” opines Prof. Madhuku.

The import of Prof. Madhuku’s argument is that the current status of the constitution Zimbabwe is using is transitional and makes Section 96(2) operational only in 2023 when vice presidents become presidential running mates. Now that the Vice Presidents serve at the pleasure of the President, the section in question does not apply.

Another argument is that Dr. Magaisa is misreading the law because he is not looking at what the framers were trying to put across. In this scenario, Prof. Madhuku further opines that the current service of Vice-Presidents can be equated to the service of Ministers and Deputy Ministers, who too serve at the pleasure of the President.

Unlike in a scenario when the President resigns, he writes a letter to the Speaker of the National Assembly who announces to the nation on the resignation, the constitutional reading at the moment does not allow the President to announce to the nation.

Prof. Madhuku however admits that “when we bring in the transitional provisions in paragraph 14 of the Sixth Schedule, not every provision in Part 2 applies to current Vice-Presidents.

Thus, some provisions in Part 2, although framed for running mate Vice-Presidents also apply to current Vice-Presidents while others will not apply to current Vice-Presidents.” He however notes, he makes further reference to the “express and implied provisions” when interpreting the constitution.

“It is clear to me that Section 96(2), BY NECESSARY IMPLICATION, does not apply to current Vice-Presidents,” says Prof. Madhuku.

What does this debate reveal?

After Prof. Madhuku’s response, Dr Magaisa also responded to the former’s argument in his latest BSR titled the “Applicability of Section 96(2) of the Constitution – A reply to Prof. Madhuku” saying there is a “fallacy of the inner legal eye” in the erudite professor’s sentiments.

“The method presented by Prof. Madhuku by which these implied terms are identified is highly problematic, not least because he offers no legal authority. His argument seems to be that only “constitutional experts” have this “inner legal eye.” But is there one “inner legal eye”? What guarantee is there that the “inner legal eye” is not partially sighted?” asked Dr. Magaisa. 

Above all, it should be noted that in debates, people are persuaded and accept arguments differently. While this is a continuing constitutional and legal debate, it should be rationally approached to understand the views of all parties involved.

Dr. Magaisa holds that President Mnangagwa breached the constitution when he did not announce to the nation of Mohadi’s resignation. He further holds that the view by Prof. Madhuku is in defence of a constitutional illegality, hence the law lecturer is a ZANU PF regime enabler. He notes that the approach favoured by Prof. Madhuku are dangerous in authoritarian regimes.

On the other hand, Prof. Madhuku tries to expose the lack of constitutional interpretation by the technocrats and framers of Zimbabwe’s 2013 supreme law, to which Dr. Magaisa was part of and had a hand to some extent.

Prof. Madhuku, who was not part of the constitution making process in 2013, further exposes the failure of characters in Dr. Magaisa’s mould of failing to understand, interpret and deliver what they advocated.

It should also be noted that the two academics are also coming from different political inclinations and persuasions. To Dr. Magaisa, views by Prof. Madhuku are that of a “regime enabler” because of his approach to legal matters and his presence in the Political Actors Dialogue (POLAD) representing the National Constitutional Assembly (NCA) party.

Dr. Magaisa, on the contrary, is a former advisor to the late former opposition Prime Minister Morgan Tsvangirai in the 2009 to 2013 Government of National Unity.

This also explains why Advocate Mpofu and Prof. Moyo too discard Prof. Madhuku’s view by endorsing Dr. Magaisa’s, without offering their scholarly views.