BILL WATCH 17/2018
3rd September 2018
President’s Assumption of Office and Appointment of Cabinet
President Mnangagwa’s five-year term of office started immediately he took the oath of office before the Chief Justice on Sunday 26th August 2018. As required by section 94 of the Constitution, this occurred within 48 hours of the Constitutional Court’s decision declaring him to have been duly elected.
The assumption of office by a new President marks the start of a new Government, so as soon as he assumed office Mr Mnangagwa was expected to appoint Vice-Presidents and Ministers to form a new Cabinet. This Bill Watch explains the process.
Appointment of Vice-Presidents, Ministers and Cabinet
Mr Mnangagwa’s previous Vice-Presidents, Ministers and Deputy Ministers ceased to hold office:
- in the case of the Vice-Presidents, when the Constitutional Court declared Mr Mnangagwa to be elected on the 24th August 2018 [section 95(2)(b) of the Constitution]
- in the case of Ministers and Deputy Ministers, when Mr Mnangagwa assumed office upon being sworn in over a week ago on the 26th August 2018 [section 108(1)(c) of the Constitution].
President Mnangagwa’s assumption of office therefore left Zimbabwe with a one-man Cabinet [himself], and without Vice-Presidents and Ministers. Until some were appointed the reins of government were held by one man: the President. This is not a good scenario in a democracy.
The Constitution obliges the President, “without delay” after being elected, to appoint either one or two Vice-Presidents who hold office at his pleasure [Constitution, Sixth Schedule, paragraph 14(2).
Note: The constitutional provisions for elected Vice-Presidents will only come into force on the 31st July 2023 – see paragraph 14(1) of the Sixth Schedule to the Constitution.
Vice-Presidents Chiwenga and Mohadi were reappointed and sworn into office on the morning of Thursday 30th August, bringing membership of the Cabinet up to three, all of them ex officio members.
There was a six-day gap between the swearing-in of the President and the swearing-in of the Vice-Presidents. This could have led to awkward constitutional problems if the President had been incapacitated during that six-day period because there was nobody who could quickly and legally have stepped into his shoes. Fortunately nothing of the sort happened and we now have a three-man Cabinet.
The swearing-in of the Vice-Presidents was, however, done in time for one of them to be Acting President when President Mnangagwa left the country for China on Friday.
Questions of Legality Arise when there is no Cabinet
The lack of a Cabinet during those four days does raise questions about the legality of decisions made by the President during that time, because under section 110(6) of the Constitution the President must exercise most of his functions “on the advice of the Cabinet”.
Veritas has already pointed out how this affects the Commission of Inquiry into Post-Election Violence: see our Bulletin of 1st September 2018 [link].
Note: Under section 339 of the Constitution, “acting on the advice of” means that one has to give a reasonable opportunity to tender advice and then the there is an obligation to follow that advice.
Timely Appointment of Ministers Essential
Despite the constitutional aberration of a three-man Cabinet without Ministers, there are still no Ministers.
As pointed out above, former Ministers and Deputy Ministers ceased to hold office when President Mnangagwa was sworn in on the 26th August, and since then Zimbabwe has had no Ministers or Deputy Ministers. Some former Ministers apparently continued to carry out Ministerial functions, even to the extent of meeting representatives of foreign governments, but they had no right to do so and any decisions or actions they may have taken lack all legal validity.
Properly appointed Ministers essential for the proper functioning of Government
Government cannot function unless there is a Cabinet which, according to section 105 of the Constitution, consists of “the President, … the Vice-Presidents and such Ministers as the President may appoint to the Cabinet.” It is obligatory for the President to appoint at least some Ministers:
- There must be a Minister responsible for the Civil Service [section 201 of the Constitution says “The President must appoint a Minister to be responsible for the Civil Service”]
- There must be a Minister of Defence [section 215 of the Constitution says “The President must appoint a Minister to be responsible for the Defence Forces”]
- There must be a Minister responsible for the Police [section 220 of the Constitution says “The President must appoint a Minister to be responsible for the Police Service”]
- There must be a Minister responsible for a national intelligence service [section 225 of the Constitution says “The President must appoint a Minister to be responsible for any national intelligence service”]
- There must be a Minister responsible for the Prisons and Correctional Service [section 228 of the Constitution says “The President must appoint a Minister to be responsible for the Prisons and Correctional Service”].
It is not constitutional for a Vice-President to be appointed to any of these posts, because Vice-Presidents are not Ministers. Although a Vice-President was appointed as Minister of Defence last year, this should not be repeated.
These ministerial appointments should be made as soon as possible, because constitutional obligations must be complied with without delay.
Composition of New Cabinet
Some points need to be borne in mind in regard to President Mnangagwa’s new Cabinet, when he gets round to appointing it:
Most Ministers must be Members of Parliament
Section 104(3) of the Constitution allows only five appointments of Ministers and Deputy Ministers to be made from outside Parliament and also stipulates that the five appointees must be chosen “for their professional skills and competence”.
How many Ministries?
The Constitution does not set a limit to the number of Ministers or Ministries, but one of the complaints against former President Mugabe was that he appointed a bloated Executive. It is encouraging that after his assumption of the Presidency in November, President Mnangagwa managed to reduce Ministerial numbers to some extent, and commentators have suggested that further reductions and a leaner Executive are advisable.
Not all Ministers need be members of Cabinet
It is possible for the President to appoint Ministers without making them members of the Cabinet:
Ministerial responsibilities must be clear
It is important that the responsibilities of the Ministers are clear, not only to the Ministers themselves but also to the public. After each Cabinet reshuffle or change of ministerial portfolios the Office of the President and Cabinet should publish notices in the Gazette listing the laws for which each Minister is responsible. This has not been done for some years. It is to be hoped that these notices will be published as soon as possible after the new Cabinet has been appointed.