Opinions

A Reply To Professor Madhuku

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A Reply To Professor Madhuku

By Alex T. Magaisa

Applicability of Section 96(2) of the Constitution –

1. Professor Lovemore Madhuku has written a legal opinion concerning the applicability of section 96(2) of the Constitution of Zimbabwe to the resignation of a Vice President. It was in part a reply to an opinion I had offered last week on the same subject. This followed the resignation of Vice President Kembo Mohadi after scandalous revelations by a newspaper.

2. Professor Madhuku disagreed with my opinion and he offered to present what he called a “scholarly” opinion on the matter. He delivered his opinion, and it is fair and in the public interest that I respond to it. It is from these legal debates that ideas and opinions are shaped. In this response, I argue that, with respect, Professor Madhuku’s opinion contains deep faults and cannot possibly survive scrutiny. In particular, I challenge the validity of his approach to the problem whereby he invokes amorphous notions like the “inner legal eye” and the “By necessary implication test”.

3. One of the things that are conspicuous in Professor Madhuku’s opinion which he had touted as scholarly is a paucity of legal authorities to back up his arguments. Legal authorities can be statutes, as in this case, the Constitution. They can be case law, often referred to as precedent. They can also be authoritative texts. While Professor Madhuku declares several items in authoritative language, there is a conspicuous absence of legal authorities to back them up. They include the following:

3.1 the distinction between express and implied constitutional provisions and whether implied terms can override express terms

3.2 the “inner legal eye”

3.3 the test for creating implied terms which we might conveniently refer to as the “By necessary implication” test.

These are key tools that he uses in his opinion, but he offers no legal authority to justify them, a point that will become apparent in the discussion of the so-called “inner legal eye”. A reviewer of an article or a judge would demand authorities. The ordinary eye might be mesmerized by these terms, but a professional would ask for authorities because that is how legal argument works. You do not just make up things without supporting authorities and present them as analytical tools.

4. Professor Madhuku argues that a distinction must be made between what he calls express and implied constitutional provisions. He makes a case for the inclusion of implied terms but does not address the basic rule of interpretation, which is to interpret the ordinary meaning of words that are expressly used. Before one engages in the exercise of looking for things that are not in the statute, they must interpret and give meaning to the stated words. This much is plain it requires no repetition. I argue that the Constitution has a clear mechanism for dealing with things that Professor Madhuku has invented in his test.

A Danger in the hands of Authoritarian Rulers

5. The approach favoured by Professor Madhuku, which appears to privilege implied terms over express terms flies against one of the most fundamental principles of the Constitution: that it can only be amended by Parliament and in any event, it must be done per a strict procedure which is entirely different from the procedure for ordinary bills. A key limb to that principle is that any changes to the Constitution must be in “express terms”. The authority for this is section 328(2) of the Constitution which states:

“An Act of Parliament that amends this Constitution must do so in express terms”

This means any changes to the Constitution can only be done by Parliament and not any other person and when it does so, it must be in express terms. Even Parliament, which has the supreme powers of amending the Constitution cannot do in implied ways. The act of reading implied terms into the Constitution has the same effect as amending the Constitution. It would be an informal process of amendment because it will be done by a person or body other than Parliament. It is dangerous because it places the written Constitution at risk. Authoritarian rulers could simply read implied terms into the Constitution even where the terms are clear and unambiguous. The invocation of such a power is tantamount to usurping the role of Parliament and subverting section 328 of the Constitution.

Fallacy of the “inner legal eye”

6. The method presented by Professor Madhuku by which these implied terms are identified is highly problematic, not least because he offers no legal authority. First, he states that it requires an “inner legal eye”. This has no authority to back it up, so it is not clear whether it is a product of his imagination or it is derived from another source. But more importantly, it lacks clarity to be of use in legal analysis. What does it mean? Who possesses this “inner legal eye”? His argument seems to be that only “constitutional experts” have this “inner legal eye”. But is there one “inner legal eye”? Assuming it exists, what if there is more than one “inner legal eye”? This very debate shows the logical fallacy of one “inner legal eye”. What guarantee is there that the “inner legal eye” is not partially sighted?

7. There is an admission of this possibility of more than one “inner legal eye” in paragraph 9 of his opinion, but he offers no helpful view as to how that multiplicity of “inner legal eyes” might be resolved. For a legal tool to have any utility, it must have coherence and clarity. Otherwise, it leads to more confusion. As American judge, Justice Cardozo once wrote “Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.” The “inner legal eye” is problematic, both as a claim to superior thinking and as a tool of analysis. It is no more than a fancy name for the opinions of those who claim superior knowledge of the Constitution than others. The trouble is there can be as many “inner legal eyes” as they are people who claim such expertise.

8. Judges have in the past invented legal tools to resolve complex problems. They have the authority to do so and if they are superior courts their legal tests are relevant and binding. The “neighbour principle” in the law of torts/delict is a famous example. It was invented by judges to resolve the question of liability in personal injury cases. Mrs. Donoghue had consumed contaminated ginger beer at a cafe. She discovered after she had started drinking it that it had a decomposed snail. She claimed damages and the court found that the café owner owed her a duty of care. In that case, the House of Lords established the ‘neighbour test’ to establish the presence of a duty of care.

To this day, courts rely on this case as the legal authority to determine whether there is a duty of care in personal injury cases. Professor Madhuku declares the existence of the “inner legal eye” as some tool to distinguish between express and implied terms but without any legal authority to support it or the clarity to be of use as an analytical tool. Until it is adopted by the superior courts as a legal principle, it is merely an opinion, one of many. As I argue below, it is not even necessary because the Constitution has a mechanism for resolving the issues raised in this situation.

The Constitutional Mechanism

9. The problem is that in framing the express/implied terms binary and therefore seeking to second-guess what the framers of the Constitution meant by reading implied terms, Professor Madhuku overlooked the fact that they anticipated these challenges and created a mechanism to resolve them. For that reason, there is no need to invoke the amorphous and indeterminate “inner legal eye” from which the “By necessary implication” standard is developed as a basis for excluding provisions. The mechanism created by the framers of the Constitution is in section 2 of the Sixth Schedule of the Constitution which deals with transitional provisions. It states as follows:

“This Schedule prevails, to the extent of any inconsistency, over all other provisions of this Constitution.”

This provision is important because it accomplishes everything that Professor Madhuku tries to deal with through his “By Necessary Implication Test” in paragraph 24 of his opinion. The framers of the Constitution knew that there might be situations where provisions of the Sixth Schedule might conflict with other provisions of the Constitution. They resolved that problem by doing two things: first, they made specific exclusions of provisions such as section 92 and 101; and second, they made provisions of the Sixth Schedule superior to other provisions of the Constitution in the event of an inconsistency. The existence of an “inconsistency” is a key factor. This means every provision that is not specifically excluded is valid and applicable unless it is inconsistent with a provision of the Sixth Schedule. The test, therefore, is not the “by necessary implication” advocated by Professor Madhuku, but whether the provision is inconsistent with the Sixth Schedule.

Let us look at each of the provisions to which Professor Madhuku applied his “By necessary implication” test, but this time under the proper mechanism which was set up by framers of the Constitution.

10. In my respectful opinion, Professor Madhuku’s “by necessary implication” test is misconceived and irrelevant because the Constitution already has an adequate mechanism for excluding provisions. Let us look at each of the provisions that he argues are excluded “by necessary implication”:

10.1 Section 91 – it is inconsistent with the Sixth Schedule because it provides for qualifications for election as Vice President whereas, under the Sixth Schedule, a Vice President is appointed. You do not need to invoke the “by necessary implication” test as Professor Madhuku does because the constitutional mechanism under the Sixth Schedule resolves it. Why go to the trouble of creating a test when the Constitution itself resolves the problem?

10.2 Section 93 – this is the provision regarding challenging the election of a Vice President. Professor Madhuku says “although not expressly excluded, by necessary implication, it does not apply to current Vice Presidents”. Again, this is a pointless exercise because this provision is excluded from the application because of inconsistency with the Sixth Schedule provision which provides for the appointment of a Vice President. You cannot challenge the election of a Vice President when the Vice President is elected. The same point as regarding section 91 applies.

10.3 Section 94 – this is the provision concerning the assumption of office by a Vice President. It states that “Persons elected as President and vice-presidents assume office when they take, before the Chief Justice or the next most senior judge available, the oaths of President and Vice- President respectively …” Again, the reason why this provision does not apply to current Vice Presidents is not “by necessary implication” as Professor Madhuku argues but because it is inconsistent with provisions of the Sixth Schedule. It refers to “persons elected as Vice Presidents” whereas current Vice Presidents are appointed under the Sixth Schedule. For that reason, they assume office differently and section 94 does not apply to them.

10.4 Section 97 – Professor Madhuku argues that this provision which deals with the removal of Vice President does not apply to current Vice Presidents. With respect, this is another erroneous view, but it deserves separate treatment since it demonstrates the absurd outcomes of the approach advocated by Professor Madhuku. But even if it did not apply, it would not be because of the “by necessary implication” test. It would be on account of “any inconsistency” with the Sixth Schedule, a mechanism devised by the framers of the Constitution.

10.5 Section 100 – this is the provision regarding the Acting President. As with the above provisions, the reason why it does not apply to current Vice Presidents is not because of the “by necessary implication” test but because it is inconsistent with the terms of the Sixth Schedule which have clear provisions regarding the selection of an Acting President.

10.6 Professor Madhuku says his point is as follows: “apart from sections 92 and 101 that are expressly excluded by the provisions of the Sixth Schedule, there are other provisions in Part 2 that, BY NECESSARY IMPLICATION, do not apply to current Vice Presidents”. I have just demonstrated that this is a pointless exercise because the framers of the Constitution devised a perfectly suitable and effective way of dealing with provisions that are inconsistent with the Sixth Schedule. There is no need to second guess the framers of the Constitution and invent an amorphous test when they already have a clear one in the Constitution. The correct and simple test which the Constitution provides is whether a constitutional provision is inconsistent with provisions of the Sixth Schedule. We have seen that most of the above provisions are inapplicable because they are inconsistent with provisions of the Sixth Schedule. Let us consider section 96(2) and section 97 to determine whether they are inconsistent with the Sixth Schedule.

What Distinguishes sections 96, 99 and 97

11. What distinguishes Section 96(2) and section 97 from the above provisions and removes any inconsistency with the Sixth Schedule is how they are worded, something that was not picked up in Professor Madhuku’s analysis. That is probably because his approach avoided the basic rule of looking at the literal text of the Constitution in favour of the search for “implied terms”. Both sections 96(2) and 97 refer to “a Vice President” and are therefore neutral as to whether the Vice President is elected or appointed.

By contrast, the provisions that are excluded because of inconsistency with the Sixth Schedule all refer to a Vice President who is “elected” or assumes office following an election. Section 94 refers to “persons elected as Vice Presidents”; Section 93 refers to “the validity of an election of a President or Vice-President”; Section 91 refers to “qualifications for election as Vice-President”. While section 100 is neutral, the inconsistency is that the Sixth Schedule has a provision which deals with Acting Presidents which therefore takes precedence. If the framers of the Constitution wanted to exclude persons other than elected Vice Presidents from sections 96(2) and 97, they would have made specific references as they did in the other provisions.

11.1 Section 96(2) provides for the resignation of a Vice President. There is no inconsistency with the Sixth Schedule. There is nothing absurd about the method of resignation provided for in section 96(2). If anything, it complements the Sixth Schedule by providing the method of resignation which is perfectly consistent with constitutional values under section 3 of the Constitution namely transparency, responsiveness, and accountability. What is absurd are the spirited attempts to exclude from application a provision that facilitates these important constitutional values and principles of good governance.

11.2 In any event, Section 324 provides that “All constitutional obligations must be performed diligently and without delay”. Section 96(2) creates an obligation for the President to inform the citizens when a Vice President resigns. What exactly would be achieved by excluding the application of section 96(2) apart from shielding the President from accounting to the citizens and being transparent? What does he lose by not informing the public? An interpretation that creates shutters around the presidency cannot be regarded as consistent with constitutionalism. It is the opposite.

11.3 Omission of section 99: It notable that Professor Madhuku omitted section 99 from his analysis of provisions that he argued were excluded “by necessary implication”. He probably categorized it as one of those provisions that apply to the current Vice Presidents, although a cynical view might be that it was inconvenient to his approach. Section 99 states as follows:

“The Vice-Presidents assist the President in the discharge of his or her functions and perform any other functions, including the administration of any Ministry, department or Act of Parliament, that the President may assign to them.”

The applicability of this provision has never been doubted even though it is part of the family of provisions under Part 2 of Chapter 5 relating to the presidency which Professor Madhuku says apply to elected Vice Presidents. It has been faithfully applied since 2013 without any question as to whether the Vice President was elected or appointed. It is the reason why Vice President Chiwenga is also the Minister of Health, and why when he was Vice President, President Mnangagwa was also the Minister of Justice. Professor Madhuku might respond by saying it is not one of the clauses that are excluded “by necessary implication”. However, the reason is that it is not inconsistent with the Sixth Schedule. If it were inconsistent like the other provisions in that part of the Constitution, it would be inapplicable. Section 99 is no different from section 96(2). Both complement and are not inconsistent with provisions of the Sixth Schedule.

Removal of a Vice President

12. Another provision that is arguably applicable to current Vice Presidents is section 97 and therefore this debate is so important. Section 97 is about the removal of the President and Vice Presidents from office. It provides for grounds of their removal by Parliament. It is a provision about ultimate accountability. This is the provision that was used to remove President Robert Mugabe during the coup in November 2017. Eventually, he was forced to resign under section 96(1). Professor Madhuku concludes that section 97 does not apply to current Vice Presidents using his “by necessary implication” criteria. Let us consider the effect of this position.

12.1 It means the Zimbabwean Parliament has the power to remove a President, but it has no power to remove a Vice President. Therefore, if the President decides to ignore what may be impeachable conduct of his Vice President, Parliament does not have the power to remove him or her, even if it wanted to do so. This is an absurdity that could not have been intended by the framers of the Constitution. The idea that Parliament cannot remove a Vice President just because he is appointed is absurd.

12.2 The fact is that once he is in office, regardless of how he got there, a Vice President occupies a key space in the presidency. He is just a breath away from the top office and sometimes occupies it in an acting capacity. Why should Parliament not have the power to remove him? There is no serious policy reason why Parliament should not have this power to hold a Vice President accountable in this way. There is nothing in section 97 that prevents it from applying to current Vice Presidents. In any event, the only argument that might be used to exclude it is that it is inconsistent with the Sixth Schedule, not the “by necessary implication” standard advocated by Professor Madhuku.

Constitutional Principles: Section 3

13. Professor Madhuku’s rationale for excluding section 96(2) is that it applies to persons who hold elected office. He argues that it is “premised on a direct election of the Presidency” and represents the constitutional principle that “the body that elected or appointed an officeholder must be informed promptly of a resignation”. It is not clear where he gets this specific constitutional principle. However, the Constitution itself has clear principles of “good governance” listed in section 3 and these include “transparency, justice, accountability, and responsiveness”. Professor Madhuku rightly notes that it is in the presidency where public notice is required but he unduly limits the rationale to the fact that “the only reason” is because of how they are elected. Another “inner legal eye”, to use his test, might consider that the rationale for section 96(2) goes beyond the manner of assuming office but is based on the substantive qualities of the office which are national and of great consequence to the citizens.

Conclusion

14. Many ordinary people might rightly be amused by the fact that lawyers and political scientists are spending time and acres of space debating this issue. To be sure it is difficult to understand the rationale for excluding the requirement for the President to inform the public when a Vice President resigns. Shouldn’t that be the norm in a society that strives for an open, transparent, and accountable government? A constitutional dispensation that is premised on constitutionalism should surely be promoting more openness and transparency in the top echelons of power.

15. The purpose of section 96(2) requiring public notification serves these higher constitutional principles of transparency and accountability. Instead of justifying the exclusion of this provision, there should be more demand for its use. But this is more than an appeal to conscience. It is based on the law. If someone can persuasively argue that section 96(2) is inconsistent with the Sixth Schedule, and is, therefore, excluded from the current application, that is understandable because that is the key test that has the authority of the Constitution. So far, no one has done that, and Professor Madhuku’s approach is not persuasive.

16. Finally, to the main issue, President Mnangagwa should have informed citizens when Vice President Mohadi resigned. It is not just because the law requires it. It is also because it is good practice. In the cases of dismissal of Vice Presidents, and there have been 3 in the last 7 years, the citizens have been promptly informed. Why should it be different when it is a resignation? There is no legitimate reason for the exclusion of section 96(2). There should be more, not less information promptly delivered to the citizens. The emphasis on implied terms at the expense of express terms sounds like an attempt to rewrite the constitution under the guise of sophisticated interpretation. The framers of the constitution anticipated these conflicts and created a mechanism for resolving them. There is no need to second-guess them by invoking the so-called “inner legal eye” or to re-invent the wheel.

WaMagaisa

 

Robert Tapfumaneyi

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