ED in a legal mess over Mohadi’s resignation

Munyaradzi Gwisai, a senior law lecturer at the University of Zimbabwe has said President Emmerson Mnangagwa will be removed from office if he is found guilty in former VP Kembo Mohadi’s resignation matter. Gwisai said it is likely that Mnangagwa violated the constitution by not announcing within 24-hours that Kembo Mohadi had resigned from the VP post and if the opposition and ruling party’s MPs converge, he will be removed from office. Below is Gwisai’s submission.

A major public controversy has erupted over the recent resignation of Vice President Kembo Mohadi over sexual impropriety scandals and President Mnangagwa not giving a public notice of the resignation within 24 hours per s 96 (2) of the Constitution. Prof J Moyo and Dr A Magaisa argued that failure to give the public notice by the President is a violation of s 96 (2). Prof. L Madhuku disagreed strongly arguing that s 96 (2) applies only to elected vice-presidents and not unelected ones like Mohadi.

The debate was ignited by a tweet by Jamwanda, presumably presidential spokesman G Charamba, that Mohadi had resigned a week earlier than 1 March 2021 when he publicly disclosed the resignation. Mnangagwa acknowledged the resignation to a Zanu PF Politburo meeting of 3 March 2021. To date the President has not given an official “public notice of the resignation.” The issue thus remains a live one.

This is not an idle academic debate. The consequences of violation of the Constitution by a President are serious and may lead to removal from office.

The Arguments

By virtue of s 14 of the 6th Schedule to the Constitution, Vice – Presidents, in the first ten years after commencement of the 2013 Constitution, are appointed by the elected President instead of being elected as running mates of presidential candidates. Further, s 96 (2) provides that a “Vice-President may resign … 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.” [emphasis added].

Prof Madhuku argued that although s 96 (2) does not expressly distinguish between elected and unelected vice-presidents, it still does not apply to the later, by way of what he called the “by necessary implication” doctrine. The later provides for implied provisions in a Constitution besides the written text. These may not be visible to the naked eye of ordinary people but to “an inner legal eye” of trained constitutional law experts. He gives examples of such provisions including on misconduct [s 97]. The purpose of the 24 hours rule is to ensure that a president and vice who resign advise the electorate who elected them. This is not necessary for appointed vice-presidents because they are not elected.

Prof J Moyo and Dr A Magaisa disagreed. Firstly arguing that s 96 (2) must be given its ordinary meaning per the Literal Rule of interpretation, which means it applies to both types of Vice-presidents because the section is clear and admits of no ambiguity. That Madhuku’s “by necessary implication” doctrine is not founded on the Constitution. In any case there is no need to invoke such a vague and elitist tool to discern provisions that apply to an elected Vice-President and an unelected one because the Constitution itself provides a clear mechanism for this. This is under the 6th Schedule providing that in any cases of any inconsistence the Schedule prevails over all other provisions of the Constitution. [s 2, Sch]. On the purpose of the 24 Hours Rule, Moyo argued that this was mainly to ensure orderly succession. Magaisa, that it was because of the significance of the office of presidency and to ensure good governance and transparency per the Founding Values and Principles of the Constitution.

Which arguments are most convincing?

Two main things need to be assessed. The appropriate interpretation model. And substantively, the purpose behind s 96 (2). On face value, Madhuku’s “by necessary implication” argument potentially up-ends established cannons of interpretation. And opening a door for judicially created implied provisions of a Constitution that shield authoritarianism and elites. The 2013 Constitution is deliberately crafted in a simple style to make it accessible to the people, from whom the authority to govern is derived. [s 3 (2) (f)]. This makes the Literal Rule the preferred and initial tool of interpretation in discerning the drafters’ true intentions. The “starting point in the interpretation of statutes is that words are to be given their ordinary meaning (unless) that meaning leads to some result which cannot reasonably be supposed to have been the intention of the legislature.” A contrary approach would be a license for judges to usurp the authority of the legislature and make law under the guise of purposive interpretation.

However, on closer scrutiny, Madhuku does not go that far. He is asserting, albeit in a rather robust manner, an accepted approach to interpretation, the Will Theory or Purposive Rule of Interpretation. That is, the “interpreter must endeavour to infer the design or purpose which lies behind the legislation … … words should only be given their ordinary grammatical meaning if such a meaning is compatible with their complete context.” This is especially so where absurd results arise or multiple meanings exist.

Madhuku’s necessary implication factors are broadly similar to those specified in the Interpretation Act [s 15B]. Similarly s 46 (1) (2) of the Constitution endorses the purposive approach to protect the underlying values and enshrined rights of the Constitution. Nothing really turns on s 2 of the 6th Schedule that Magaisa invokes against Madhuku as the section is permissible of both the Literal Rule approach as well as the Purposive Rule approach.

Eventually in rebuttal, both Magaisa and Moyo are forced to lock horns with Madhuku on the substantive issue that really matters in this dispute, the true purpose of s 96 (2). This, l submit, because Madhuku adequately demonstrated sufficient ambiguities and potential multi-meanings of s 96 (2), especially with reference to the 6th Schedule and Part 2 of CAP 5 pertaining to elected vice-presidents and appointed ones. Such as on succession, acting capacity, remuneration or removal from office.

What is the true purpose of s 96 (2)?

The purposes given by the two sides are all legitimate but unequal. Madhuku conceded that his “inner legal eye” can lead to different conclusions from different experts. The real question is which conclusion is most convincing and what criterion one uses to rank them. Making consideration for inherent subjective bias, it is still possible to rank the different conclusions on a platform of relative objectivity centered on the letter and spirit of the Constitution itself.

On that basis I submit that Madhuku’s conclusion is the least convincing if regard is had to the logic, scheme, history and values of the Constitution. He goes for the lowest common denominator whose effect is to shield authoritarianism. He restricted himself to his one identified purpose and failed to identify possible potential others and do a comparative analysis distinguishing them from his. A related weakness is the elitist approach underlying it, restricting the “inner legal eye” agent to expert lawyers.

If the touchstone is assumption of office by election, as Madhuku argued, then the 24 Hours rule should equally apply to other elected public officials, but it does not, notably, elected members of the National Assembly or councilors. Nor does he justify why national elections should be treated separately.

At the heart of the weakness of Madhuku’s argument is his failure to contexualise s 96 (2) to the underlying values and principles of the Constitution and the interpretation model it compels. The still all- powerful Presidency under the 2013 Constitution, including the Vice Presidents, is the public office that most directly and immediately impacts on both national security and core values of the Constitution set out in the Preamble and s 3. These include “resistance to all forms of domination and oppression…democracy, good, transparent and accountable governance and rule of law, separation of powers”, free and fair elections and respect for the people of Zimbabwe “from whom the authority to govern is derived.” The above values, principles and constitutional set up manifest the Social Contrast Theory of the State most eminently propounded by 18th century British philosopher John Locke.

The new constitution, despite spirited resistance, still retained an extremely powerful President who straddles the three pillars of state power, namely executive, legislative and judicial authority. The gigantic executive powers include being Head of State and Government, Commander-in-Chief of the Defence Forces, power to declare war and make peace and to declare a State of Emergency. The President is also a legislative authority as the “Legislature of Zimbabwe consists of Parliament and the President.” The President can dissolve Parliament. The President is also a judicial authority with power to appoint and dismiss judges. In criminal matters the President is the de facto final appellate authority above the formal courts by virtue of the President’ extensive power of mercy.

The drafters of the 2013 Constitution would have been aware of this delicate adherence of their constitution to the proclaimed high principles of democracy, rule of law and separation of powers. Hence they provided a battery of principles and checks and balances to mitigate the enormous powers of the Presidency. As well as an appropriate interpretation model to deal with future contingencies or ambiguities. Without these the office of the presidency under the 2013 Constitution cannot pass the rule of law /separation of powers test and would be indistinguishable from the Executive Presidency under the old constitution. Or the absolute monarchies in pre-colonial indigenous African constitutional law such as the Inkosi of the Ndebele State, the Mambo of the Rozvi Empire and the Changamire of the Mutapa State. Or in Roman constitutional law, the Rex of the Roman Monarchy.

Indeed and ironically, a major reason the old NCA led by Prof Madhuku and the Democratic United Front [DUF] including the International Socialist Organisation, campaigned for a Vote No in the 2013 Referendum was because we felt that the checks and balances on the Presidency did not go far enough.

The first critical check and balance is the applicable constitutional interpretation model. To ensure realization of core underlying values, the drafters created an interpretation straightjacket. An interpretation model that compels giving full effect to enshrined rights and freedoms, “promote the values and principles that underlie a democratic society … in particular, the values and principles set out in section 3.” [s 46 (1)]. And oblige the superior courts to develop common law or customary law taking into account the provisions of the Constitution. [s 176].

The above is critical in situations of ambiguity, vagueness or multiple meanings. The interpreter does not have a blank cheque but must be guided by this interpretation model. Interpretations that give full effect to these values and principles must be preferred over those that do not.

It is the above that must be used in interpreting s 96 (2). Firstly, the premises of Madhuku’s argument that it is the manner of assumption of office, namely elections, that creates the need for the 24 Hours rule is a fair but inadequate start. It needed further contexualisation in relation to the Constitution’s underlying core values. One of these is that “the authority to govern is derived” from “the people of Zimbabwe”, expressed through “free, fair and regular elections.” The Presidency are the only public offices that are directly elected by the people nationally. They represent the highest manifestation of the people’s will. This includes the Vice Presidency, as the Constitution treats them together in one part. The Vice Presidents are the President’s direct assistants and automatically assume the latter’s office in case of temporary incapacitation and succession in case of permanent incapacitation, death, removal or resignation. Thus prima facie, Madhuku is correct in pointing out the significance of elections.

But the matter is deeper than that, especially when it comes to transitional provisions. The form here, that is the assumption of office by election, is acting primarily as a facilitation tool. In a democratic society, elections by a national electorate, are the only acceptable keys to legitimately assessing offices with such overwhelming powers. The primary thing though being the overbearing powers that inhere in those offices. Powers with direct and immediate impact on the society’s core democratic values and national security. As pointed out by Adv. T Mpofu, the position of the unelected Vice – President is a temporary one, brought in by way of transitional provisions to facilitate the movement form the old to the new. In assessing the nature of the legal character of this transitional office, one applies an established legal principle, substance takes precedence over form. In relation to s 96 (2) the main substantive consideration, by virtue of the core values of democracy and rule of law, is whether appointed Vice – Presidents exercise the same powers as the elected ones. If they do, both common sense and the imperatives of the above core values dictate that they be placed under the same strictures and checks and balances that govern elected Vice – Presidents. The contrary would only apply if there are express provisions prohibiting this, such as the power of President to unilaterally dismiss an appointed Vice President, but which cannot be done to an elected Vice President.

The onerous 24 Hours Rule is an example of a constitutional checks and balances mechanism. The stringency of the 24 Hours public notice speaks to the special nature and powers of the office of the presidency. A lacuna or gap cannot be allowed to occur in the vacancy or public knowledge of such a critical, all-encompassing office. It can lead to subversion of state security. In the Rozvi and Mutapa states the death of the Mambo or Changamire was announced several days after the burial and the successor already confirmed to avoid disruptive power struggles. Another good example is from the Ndebele State. Following the prolonged absence of Inkosi uMzilikazi the indunas (chiefs) installed his son, Nkulumane, as successor, only for Mzilikazi to reappear later. All the Indunas were executed, reportedly thrown off steep hill slopes at Ntabazinduna. (Hill of Chiefs). The nature of the offices of the presidency dictates that there be no lacuna in this public office even for the shortest period. The 24 hours notice requirement ensures immediate public knowledge of any such event and must apply to whoever wields the substantive powers of the office, elected or appointed, as argued by Moyo.

The above applies because the Constitution does not differentiate on the powers of the two. The imposition of the 24-Hour Rule on the appointed Vice-President thus promotes good, accountable governance as demanded by s 3 and the Preamble per Magaisa. It promotes orderly succession as argued by Moyo. Whereas Madhuku’s formulation potentially creates chaos, confusion and threats to national security from power struggles. Say an unelected vice president resigns but the President does not give the public notice and immediately thereafter the President dies or is incapacitated. If the vice president turned around and sought succession it would be difficult to prove their resignation if only the President had knowledge of the resignation. The 24 Hours rule forestalls this by ensuring immediate notice to the public. Madhuku’s formulation leads to another absurd result, which violates principles of good governance, in that it denies Parliament power to remove an appointed Vice- President for misconduct or incapacity under s 97 but it can for a President and elected Vice-President.

From the above it is clear that the most convincing interpretation of s 96 (2) is the one which promotes the principles that underlie a democratic society, that being Magaisa and Moyo’ interpretation that s 96 (2) applies to both elected and appointed vice-presidents. Consequently, President Mnangagwa has violated the Constitution by his ongoing failure to give public notice of the resignation.

Inherent biases in legal interpretation

The above is demonstrative of the process of law interpretation. Interpretation involves both a technical aspect requiring a degree of expertise but there is also a subjective aspect in which the hidden prejudices of the interpreter, predominantly personal, social, gender, racial and class, play a major role. American Realist scholars call these hidden prejudices “major inarticulate premises.” Marxist scholars assert that in critical or grave cases, judges and scholars ultimately represent and defend the interests of the dominant economic and political elites of a given society. They are not truly independent.

Thus in assessing why Prof Madhuku made and rigorously defends the choice that he made, one must consider the interests of the political and economic class elites that he identifies with. Whereas prior to 2013 he was a leading and militant opponent of the Mugabe dictatorship in his roles as NCA chairperson and principal legal advisor to Morgan Tsvangirai and ZCTU, he has since changed. Today he is a leading member of POLAD, which brings together the small parties with the ruling party. The former recognize the Mnangagwa presidency and seek to achieve political and electoral reform including free and fair elections through social dialogue and collaboration with the authoritarian Zanu PF state.

This, unlike the main opposition, MDC Alliance which rejects the legitimacy of the Mnangagwa presidency and POLAD. Whilst the state is carrying out a ruthless repression offensive against MDC A it rewards the POLAD small parties that collaborate with it like MDC T and NCA. Thus Madhuku was appointed to the 2018 Motlanthe Commission on the August 2018 killings after the 2018 elections, despite that he was an opposing candidate. He has become the go-to legal analyst for state media like ZBC, something which did not happen prior to 2013.

In terms of class, the social base of the Mnangagwa regime is the nationalist black junior wing of the capitalist ruling class that has most benefitted from the land reform and is using the State as a platform for primitive accumulation and neoliberal attacks against workers, peasants and the poor. An elitist constitutional interpretation model such as Madhuku’s “inner legal eye” well serves this ruthless class. Thus in his interpretation of s 96 (2) it is not surprising that Madhuku has chosen the option that advances the most, the interests of the political and economic class elites that he is collaboration with, even if this may be the least convincing.

The same applies to Madhuku’s antagonists. Prof Moyo was the leading ideologue of the Zanu PF faction that was vanquished in the Mugabe succession power struggles leading to the November 2017 coup and supported Chamisa in the 2018 elections. Dr Magaisa was legal advisor to Prime Minister Tsvangirai and is a leading public intellectual supporter of MDC Alliance. Adv Mpofu, “the people’s advocate”, is Chamisa’ chief legal advisor. Their choices are therefore similarly influenced including the strident defense of a literal approach to s 96 (2) despite Madhuku’s reasonable submissions to the contrary.

However, even within the realm of inevitable subjectivity that interpretation of laws must involve, there must still be some degree of adherence to relative objectivity based on the letter and spirit of the Constitution and laws. If scholars or judges give too much reign to their subjective class and political prejudices, straying too far from public notions of fairness, justice and rule of law, they risk, as argued by eminent American legal scholar, Roscoe Pound, to be eviscerated by the court of public opinion. This is dangerous, for as the Constitution provides; “Judicial authority derives from the people of Zimbabwe.” [s 162]. The judiciary today, arguably, stands dangerously close to the precipice following a recent series of such decisions. These include the Zuva Petroleum case restoring the common law Notice Rule of dismissal leading to the job genocide of thousands; the Sibanda case that held the military inspired November 2017 ouster of Mugabe was not a coup, and the Mashavira decision that resuscitated, like Lazarus, T Khupe’s comatose MDC T, creating the legal basis for Mnangagwa’s ongoing war to destroy MDC A. The dangerous loss of respect is reflected in the colloquial dismissal of the judiciary as “captured courts.” The same applies to the organic intellectuals of the ruling class, as shown in the growing public disdain of Prof Madhuku despite him being arguably the country’s most eminent legal scholar.

Conclusion: Opposition must ensure President Mnangagwa faces the Consequences

There is thus a very strong basis for holding that President Mnangagwa violated the law by his ongoing failure to give a formal public notice of VP Mohadi’s resignation. But so what? This is a serious matter.

The Constitution provides only for a political remedy through Parliament. There is no recourse to the courts. The process is set out in s 97. This provides for removal of the President if found guilty of willful violation of, or failure to obey, uphold or defend the Constitution. The process is triggered by a motion for a joint resolution of Parliament to investigate the President. (impeachment).

If at least one-half of the total membership of Parliament pass the resolution, a 9-member joint committee of Senate and the National must be set to do the investigation. The committee “must reflect the political composition of Parliament”, which means it must include the opposition. The President will be removed if found guilty by the Committee and approved by a joint resolution of a two-thirds majority of Parliament.

It is obvious that ruling party legislators will not initiate such process. And that their two thirds majority in Parliament will likely kill the process at the first stage. But it makes political and strategic sense for the bourgeois opposition to still initiate the process. In the same way Democrats in the US Congress initiated the Trump impeachment even if they did not have the constitutional threshold in Senate to convict. Or the EFF motions of Votes of No Confidence against former president, J Zuma, even if the ANC had a blocking parliamentary majority. They do so to expose the unsuitability of the President. To show the real opposition and expose the captured opposition. To revitalize the opposition base, which is why the motion must be supported by a public march handing a supporting petition. [s 149].

The bourgeois opposition has for the last twelve months endured a relentless repression regime offensive, including the tactic of lawfare. That is weaponizing law to persecute opposition, civic, labour and student activists but hiding the iron fist of dictatorship under the silky glove of legality. Such motion in Parliament would reverse the tables and allow the opposition to go on the offensive for once.

Ultimately of course, an entrenched dictatorship will not be stopped by legal maneuvers but serious mass action of the oppressed and excluded. Such Parliamentary action must only act as a tactic towards mass disobedience and mass action for the people to reclaim their sovereignty usurped by the current regime. The question is whether Chamisa and MDC A are now prepared to do this and abandon their hitherto doomed appeasement strategy, suing and begging for peace with a recalcitrant dictatorship.

Munya Gwisai is a leading member of International Socialist Organisation; Senior Lecturer, Faculty of Law, University of Zimbabwe and Partner at Matika Gwisai and Partners. Views expressed are personal.

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