By Prof Jonathan Moyo
Thank you for an interesting but wrong opinion that s96(2) of the Constitution applies only to vps who’re running mates & not current vps who’re appointed. I offer my rejoinder because I triggered the debate.
You fatally misunderstand the IMPORT of s96(2) by linking the public notice of a resignation of a vp to HOW they ASSUMED office, when it is about announcing a VACANCY that affects SUCCESSION to the Presidency; regardless of whether the resigning vp was ELECTED or APPOINTED!
I will elaborate on the above key point later, but first some points in limine on some surrounding observations. Firstly, I don’t understand why you thought it necessary to present your opinion as an “extract from an academic manuscript”. Is it a peer reviewed “extract”?
An academic legal treatise would have cited relevant authorities or case law to support your argument or opinion. But you proffered none, yet you know only too well that binding legal opinions come from the superior courts. Your opinion is speculative, with no stare decisis!
It’s obtuse to come waving one’s academic or professional credentials to a popular public or media platform like these streets. Here all interlocutors are equal; all arguments are made & sustained on their merits, and not on some self-proclaimed “inner eye” of whatever kind!
Interestingly, your mobsters claim that my colleagues, former ministers, and I who were law students at UZ are dropouts; as if law can only be studied at UZ or in Zim. I did not drop out of UZ, I was violently pushed out of ZIM and I exited in terms of INTERNATIONAL LAW!
The law is not made for lawyers; I say this having served as a lawmaker in Zim for 17 years. The law is made for the people whom it serves. Period. The power to interpret the law rests with the courts, not with lawyers; even non lawyers can represent themselves in court!
But lawyers have a key function, in constitutional democracies, not least to help the courts to interpret the law. But what lawyers say is never binding; it can only be persuasive. Hence it’s unnecessary for lawyers to claim, as you did, “inner legal eyes” in public debates!
You premise your opinion on a false presumption that “every Constitution has two provisions, namely: 1. express provisions; 2. implied provisions”. What are the authorities for this presumption, whose staggering import is that every Constitution has hidden provisions?
In my view, as a former lawmaker who was closely involved in two constitution making processes in Zim, I find the proposition that every Constitution has written (express) & unwritten (implied) provisions to be absurd, from the standpoint of transparent constitution making!
It’s a settled position that the framers of a democratic Constitution must say what they mean & mean what they say to avoid hiding their intent or inviting consequences that are anomalous or absurd. That’s why the literal rule is the first canon of statutory interpretation!
As a principle, modern Constitutions are written not for legal experts but for the generality of the people from whom executive, legislative & judicial authority is derived. To have, as a rule, unwritten or hidden, or your implied, provisions; would negate this principle!
It’s possible & is common that a constitutional provision is not sustainable by its literal interpretation; and may require other rules of interpretation to establish its meaning (intent of its framers); which is not the same as unearthing an unwritten or hidden provision!
In the circumstances @ProfMadhuku , you start by asking a false question: “Does section 96(2) of the Constitution of Zimbabwe, 2013 apply to resignations of current Vice Presidents? This is not the right question; it’s YOUR ANSWER to a question, you’re avoiding to deal with!
Based on the agreed facts, the legal question, that you seek to avoid in vain is this: Did President Mnangagwa breach the Constitution by failing to inform the public of former VP Mohadi’s resignation, within 24hrs of his receipt of the resignation notice; as per s96(2)?
Your wrong framing of the question is as problematic as the quandary of a guy who, after parking his car on the unlit roadside enters a bar; upon leaving drunk, he realises he has lost his car keys & decides to look for them on the lit side of the road, hoping to find them!
It’s clear @ProfMadhuku you realise that President Mnangagwa breached s96(2) of the Constitution; and you’re trying to assist him to escape the consequences. But you’re on the wrong side of the road, the lit side; no hiding, everything can be seen, there are no keys there!
Now @ProfMadhuku , on para 31 of your opinion, you’re fixated with the false presumption that s96(2) is linked to the running mate concept. Dead wrong: only sections 91, 92, 93, 94, 95 & 97 are linked to, or are affected by, the running mate concept in the 2013 Constitution!
On paras 31 & 32 of your opinion, you claim that s96(2) is necessitated by the fact that the Vice Presidents are elected officials, as running mates & that therefore their resignation must be notified by the President to the ELECTORATE. No. Your “inner legal eye” is blind!
As mentioned earlier, s96(2) has nothing to do with whether the Vice Presidents are ELECTED, as running mates with the President, or they are APPOINTED by the President. Rather, the public notice is necessary because their resignation affects SUCCESSION TO THE PRESIDENCY!
A Vice President, whether elected or appointed, is at all times a potential President. So, when a Vice President resigns; the PUBLIC, not the ELECTORATE, must know about the resignation as soon as possible, within 24 hours; given its implication on the SUCCESSION QUESTION!
It is because of its link with the SUCCESSION TO THE PRESIDENCY that s96(2) is unaffected & thus NOT suspended by the 6th Schedule. It is trite that a provision of the Constitution that’s neither specifically suspended nor is in conflict with the 6th Schedule is OPERATIVE!
To rest the matter, it’s instructive that Constitutional Amendment (No.) before Parliament repeals ALL THE RUNNING MATE provisions in ss 91, 92, 93, 94, 95 & 97 but RETAINS, as is, s96 & ALL the current provisions of the 6th Schedule on SUCCESSION!
ALL TOLD, it’s clear that @ProfMadhuku ‘s claim that s96(2) is currently suspended along with the running mate provisions is baseless & self-indulgent sycophancy. It is designed to protect President Mnangagwa who is in clear breach of s92(2) over Mohadi’s resignation!