HARARE - Legal gurus say there is no constitutional impediment that precludes Zimbabwe’s newly-appointed vice presidents from holding ministerial positions at the same time.
This follows heated and ongoing public debates about whether vice presidents Emmerson Mnangagwa and Phelekezela Mphoko should also simultaneously hold ministerial positions, as they both do, particularly seeing that they cannot be legislators by virtue of being VPs where the law demands that members of Cabinet must be Members of Parliament.
Constitutional expert and interim co-leader of the United MDC, Welshman Ncube, said his understanding and reading of the Constitution was that President Robert Mugabe could appoint a vice president to be in charge of a certain portfolio.
“That doesn’t mean that the vice president is a minister. He is a VP in charge of a particular portfolio. In the case of Mnangagwa, for example, he is a VP with responsibilities of superintending over the Justice ministry, as he also has other responsibilities such as acting as the president when the president is away or supervising some ministers.
“So Mphoko and Mnangagwa are VPs who supervise particular ministries.
“I don’t think that is untoward or not consistent with democratic tradition because historically we have seen prime ministers assigning themselves ministries.
“The world over is abound with such examples and there is nothing amiss with that. Moreso, the Zimbabwean Constitution doesn’t prohibit that,” Ncube told the Daily News yesterday.
Kent law lecturer, Alex Magaisa, concurred with Ncube’s sentiments.
“My reading of the Constitution is that there is no constitutional barrier to this arrangement,” he said.
Magaisa said the provision that most people had raised was section 103 of the Constitution which provided that the president and his vice presidents must not, directly or indirectly, hold any other public office while they are in office — with a ministerial office falling within the definition of a “public office” under section 332, which stated that a public office was “a paid office in the service of the State”.
“On a strict reading of section 103, it would therefore, appear that appointing a VP to a ministerial role would seem to be impermissible.
However, in my opinion, section 103 cannot and should not be read in isolation,” he said.
He added that section 104(1) provided that the president “may reserve to himself or herself the administration of an Act, Ministry or department”, and since the vice presidents assisted the president in carrying out his functions, it could be argued that he could legally assign his lieutenants to administer whatever ministry or ministries that he would have reserved for his office under this provision.
Another lawyer who spoke to the Daily News on condition of anonymity also said the president could assign a certain ministry to his office and appoint one of his deputies to supervise it.
“That vice president doesn’t become a minister but a VP who has been delegated to supervise a ministry. So from a legal point of view what is obtaining is correct although it may not be preferable,” he said.