Tomana brushes aside challenge on VPs

HARARE - Prosecutor-General Johannes Tomana has brushed aside a legal challenge to the appointment of  two new vice presidents — Emmerson Mnangagwa and Phelekezela Mphoko — saying it was an executive  decision not subject to judicial inquiry.

This comes after the opposition National Constitutional Assembly (NCA) had raised a red flag following the sacking of former vice president Joice Mujuru and her subsequent replacement by two deputies.

NCA leader Lovemore Madhuku said “the option of the President to appoint one or two vice presidents is only exercised soon after the president is sworn into office.”

“Once the president has decided to appoint one vice president, he cannot change his mind and have two Vice Presidents during the same term of office,” Madhuku argued.

“The president cannot replace vice president Mujuru by two vice presidents. This is what paragraph 14, sub-paragraph 2 of the Sixth Schedule to the Constitution says.”

He was approaching the Constitutional Court seeking guidance.

But Tomana counter-argued yesterday that the NCA leader was not reading the Constitution correctly.

Addressing journalists on the sidelines of the swearing-in-ceremony of Mugabe’s two deputies and eight ministers at State House yesterday, Tomana said the clause Madhuku was using in his argument will come into force after 10 years, or in 2023.

“This is an executive action that is not subject to judicial inquiries,” Tomana said.

“Moreover, he (Madhuku) is not reading the constitution correctly because what he is saying can only happen after the provision kicks off in 2023. Currently we are being guided by the provisions of the old constitution which has space for two (vice presidents).”

The former Attorney General said by appointing one vice president after last year’s election, Mugabe had complied with the law in that respect.

Section 14(2) of the sixth schedule of the old constitution reads: “Without delay, the person elected as president in any election referred to in paragraph 1 must appoint not more than two vice presidents at, who hold office at his or her pleasure.”

Tomana said the fact that Mugabe delayed appointing the other VP does not stop him from doing so at all.

“If one is supposed to do something now, should I not do it later simply because I was late in the first instance?” asked Tomana.


Comments (2)

Tomana is not the court of law let courts decide.

Diibulaanyika - 13 December 2014

The PG better be correct in his interpretation and analysis of constitutional law in this respect, because if Madhuku is corrected, then RGM is estopped from subsequently appointing 2 VPs. The long repealed Labour Relations (General Conditions of Employment) Termination of Employment Regulations SI 371/85, used to say employers who wanted to dismiss an employee after suspending him had to apply to the Ministry of Labour FORTHWITH for approval. A delay of more than two months was deemed by the Supreme Court as not complying with the letter and spirit of the law as embodied in the word FORTHWITH. The word "without delay" and "forthwith" are not complicated words requiring application of principles of rockect science or the wisdom of Biblical King Solomon and can be safely substituted with the word "immediately". So if President RGM blew it, then Professor Madhuku is right, but if the PG is right, then President RGM is right and his decision to appoint two VPs as he did is not subject to judicial review.

Maxwell Christian - 17 December 2014

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