BILL WATCH 53-2020 - Senate Adjourns to 15th September - Appointments to Ministry of Health

BILL WATCH 53/2020

[7th August 2020]

The Senate Has Adjourned to 15th September

Business of Parliament Remains Suspended until Further Notice

First An Apology : In the last Bill Watch we stated that Hon Masango Matambanadzo who passed away recently

was a member of ZANU-PF, but in fact he was a member of the National Patriotic Front

Senate  Meets then Adjourns until Tuesday 15th September

The Senate met on Tuesday 4th August, the date to which it had adjourned from its most recent previous sitting on the 23rd July.  Tuesday’s sitting lasted only four minutes, with the Deputy President of the Senate, Hon Nyambuya, presiding.  After the prayers that start every Senate sitting, two items of business were conducted:

Announcement of the death of Senator Rtd Air Chief Marshal Perrance Shiri

Hon Nyambuya announced that he had died on Wednesday 29th July.  He was Minister of Lands, Agriculture, Water and Rural Resettlement, Leader of Government Business in the Senate and Senator for Mashonaland Central Province.  All present rose and observed a minute’s silence in respect for the late Senator.

Adjournment until Tuesday 25th August

As expected following the National Assembly’s brief sitting last week and its adjournment until 25th August – see Bill Watch 52/2020 [link] – the Senate also adjourned, but until Tuesday 15th September.  If members of the National Assembly do not have to extend their recess on account of the COVID-19 pandemic, this will give them a chance to use the three working weeks between these two dates to pass the National Assembly’s backlog of Bills, thereby generating work for the Senate.

Contact with Parliament during the recess

Until a further announcement is made by the Clerk of Parliament, Parliament remains shut down.  Anyone intending to submit any documentation to Parliament or seeking information from Parliament is requested to use the following email addresses: clerk@parlzim.gov.zw; or chokuda@parlzim.gov.zw.

Backlog of Bills in the National Assembly

Bills for continuation of Second Reading debate

Constitution of Zimbabwe Amendment (No. 2) Bill – Start of Second Reading debate

As notified by Veritas in a special Bill Watch bulletin [link] disseminated early evening on 9th July, the Minister of Justice, Legal and Parliamentary Affairs presented this Bill that afternoon, followed by his Second Reading speech and the presentation of the Portfolio Committee’s report [link] on the public hearings on the Bill.   Backbenchers then began making contributions to debate.

Attorney-General’s Office Amendment Bill [link]

Forest Amendment Bill [link] National Prosecuting Authority Amendment Bill [link]

For launch of Second Reading stage

Financial Adjustments Bill [link]   Although this Bill dates from last year, the Minister of Finance and Economic Development has not yet started off the Second Reading stage with a speech explaining the Bill.

Debate on the Death Penalty in the Senate

The debate on Senator Makone’s motion calling for the abolition of the death penalty by repealing all statutory provisions for it is due to continue when the Senate eventually meets again.  

For those interested in the issue, Veritas refers you to our easy-to-read booklet available on the Veritas website – Should Zimbabwe Abolish the Death Penalty? The Facts : The Case for Abolition [link].

ZEC Gazettes 15 Party List Vacancies in MDC-T/MDC-A Parliamentary Seats

The Zimbabwe Electoral Commission [ZEC] gave public notice in the Government Gazette of 31st July by General Notice 2078/2020 [link], that it had received notice from Parliament of fifteen vacancies in proportional representation seats in Parliament.  Seven of these are from the National Assembly and eight from the Senate.  These vacancies had been previously announced in Parliament by the Speaker and the President of the Senate, respectively, citing section 129(1)(k) of the Constitution.  The vacancies arise from Parliament’s acceptance of the recalls of fifteen MDC-A party list members of Parliament by the leadership of the MDC-T.  The MDC-T leadership acted on the basis that they were restored to office by the Supreme Court judgment of 31st March 2020 in the case of  MDC and Others v Mashavira and Others, Judgment 56/2020 [link].  

Under section 157(1)(d) of the Constitution, these vacancies do not necessitate by-elections.  Instead this provision stipulates that every party list vacancy must be filled by a person belonging to the same political party as the former incumbent did and must be of the same gender, but leaves the procedure for filling vacancies to be provided in the Electoral Act.

Section 39 of the Electoral Act is the relevant section.  Section 39(4) provides that upon being notified of vacancies in the proportional representation seats in Parliament, ZEC must notify the public of the vacancies by notice in the Gazette and, at the same time as the notice is gazetted, must invite the political party [i.e. the political party to which the former incumbents belonged] to nominate suitably qualified persons to fill the vacant seats.  If the Chief Elections Officer is satisfied that the nomination papers are in order, ZEC will then gazette a list of the nominees and invite objections to the nominees from members of the public.  Finally, in the absence of valid objections, ZEC will gazette a notice appointing the nominees as members of Parliament to fill the vacant seats, as it did for the eight-month old National Assembly vacancy referred to in the paragraph below.  

BUT The legal situation on the legitimacy of the MDC Alliance vis-à-vis the MDC-T is still sub judice.  Whether the recalls by MDC-T still stand after the 31st July [the deadline the Supreme Court gave for a fresh MDC-T Congress to elect the leadership] is also legally questionable.  If ZEC goes ahead with filling these vacancies on the basis that the recalls were valid, it may find itself embroiled in legal proceedings.  

ZEC Fills ZANU PF Party List Vacancy in National Assembly

ZEC has gazetted the appointment of Esther Nyathi, the nominee put forward by ZANU PF, as a party list/proportional representation [women’s quota] member of the National Assembly.  The appointment is in terms of section 39(7)(a) of the Electoral Act and with effect from the 31st July 2020.  See General Notice 2079/2020 of 31st July [link].

This appointment fills the vacancy in the Matabeleland South party list seats for women caused by the death of Hon Alice Ndlovu of ZANU PF on 29th November 2019.

Ministry of Health and Child Care Appointments

New Minister – Vice-President Chiwenga

On the 4th August the Chief Secretary to the President and Cabinet announced that President Mnangagwa had appointed Vice-President Chiwenga as Minister of Health and Child Care, effective immediately.  The appointment fills the vacancy arising from the dismissal  of former Minister Dr Obediah Moyo on 7th July for “conduct inappropriate for a Government Minister”.

On the face of it the appointment seems illegal.  Section 103 of the Constitution states:

“… Vice-Presidents … must not, directly or indirectly, hold any other public office …”

This means that a Vice-President cannot be appointed as a Minister.  A similar situation arose in December 2014 when then President Mugabe appointed Mr Mnangagwa as Vice-President but chose to retain him as Minister of Justice, Legal and Parliamentary Affairs.  The constitutionality of this arrangement was challenged in the Constitutional Court, having regard to section 103 of the Constitution, but the challenge failed on the ground that Vice-President Mnangagwa had been assigned the administration of the Ministry of Justice ‒ which was lawful in terms of section 99 of the Constitution ‒ without having been appointed Minister of Justice.  In this case however the official announcement states quite clearly that VP Chiwenga has been appointed Minister of Health and Child Care.

New Permanent Secretary – Air Commodore Chimedza

On 3rd August the Chief Secretary had announced that President Mnangagwa had appointed Air Commodore Jasper Chimedza as the Secretary for Health and Child Care, effective immediately.  He qualified as a medical practitioner at the University of Zimbabwe and has served as Director, Health Service, at the Zimbabwe Defence Forces GHQ since 2010.

The post of Secretary for Minister of Health and Child Care has been vacant since the previous incumbent, Dr Agnes Mahomva, was reassigned to the new post of Chief Co-ordinator, National Response to Covid-19 Pandemic in the Office of the President and Cabinet in May this year.

Section 208(4) of the Constitution states:

“Serving members of the security services [a term which includes the Defence Forces] must not be employed or engaged in civilian institutions except in periods of public emergency.”

This is not a period of public emergency because there has been no declaration of a state of emergency in terms of section 113 of the Constitution.  One hopes that Air Cdre Chimedza resigned or retired from the Air Force before his appointment, otherwise the appointment is illegal.

 

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