by Alex T. Magaisa
This is a quick note to provide a legal explanation around the current situation of Prof Jonathan Moyo, whom reports say has been relieved of his Governmental functions. Details of what has transpired are not clear at present. One view is that he has been sacked. The other perspective is that what has happened is merely procedural and that he will bounce back into cabinet.
The purpose of this note is to explain the law around the appointment and removal of Cabinet Ministers as provided for in the Constitution. The aim is to respond to the numerous inquiries from the media and members of the public regarding the legal aspects in this scenario
First, it is trite that in terms of the Constitution, all cabinet ministers are appointed by the President at his discretion in terms of s. 104 of the Constitution.
It is also trite that Cabinet Ministers serve at the pleasure of the President. They can be hired and fired at any time. To use made famous by Moyo himself the last time he was fired from Cabinet in 2004, “he who appoints also has the power to disappoint”.
Therefore, President Mugabe has the power to sack Moyo if that is what he has done. There is little recourse in such a case as one cannot force himself upon the President. This would explain what has happened if indeed he has been sacked. However, there is a view that this is simply a procedural requirement. Let us look at this explanation.
In terms of s. 104(3) of the Constitution, Ministers are appointed from among Members of Parliament. However, up to 5 chosen on the basis of their professional skills and competence may be appointed from outside Parliament. They are all of equal status, whether from Parliament or from outside Parliament. Moyo was among the 5 who were appointed under the Presidential appointment facility because he had lost the Tsholotsho North seat in the 2013 elections. Therefore, he served as a Minister, although he was not an MP.
However, his situation changed last week when he contested and won the Tsholotsho North seat following a by-election. Moyo was duly was sworn in as an MP following his victory.
Did this change in his situation from non-MP to MP affect his seat as a Cabinet Minister? It didn’t have to affect his status if President Mugabe still wanted him to remain as Minister.
Did it mean he could no longer be a Cabinet Minister under the facility through which he was initially appointed in 2013? Technically, yes. Moyo no longer needed the Presidential appointment facility under s. 104(3) to serve as a Minister. Instead, he could now be one of the Ministers drawn from Parliament. This would actually free up one space, allowing the President to appoint another person in that space, should he wish to do so. Moyo could remain as a Cabinet Minister, but now as a Member of Parliament.
Did this require Moyo to be relieved of his functions as a Minister, only to be re-appointed later?
If one wants to be pedantic, this would be the procedure but it is really no different from a Cabinet reshuffle. You don’t have to go through an elaborate ceremony of removing Ministers and re-appointing them again in a Cabinet reshuffle. What would be the point of all that?
The one constitutional provision that is remotely relevant is s. 108(3), which states that a Minister appointed from outside Parliament vacates his office “if circumstances arise that would result in his or her seat becoming vacant were he or she a Member of Parliament”. This requires us to consider whether there are any circumstances as provided for under s. 129 of the Constitution. This is the provision that deals with circumstances under which an MP would vacate office.
The only ground that is remotely relevant to Moyo’s situation, which I suspect may have been used in this case, is s. 129(1)(g) which states that an MP vacates his seat if he “accepts public office”. “Public office” is defined under s. 332, the definitions section in the Constitution as “a paid office in the service of the State” and a “public officer” is “a person holding or acting in a public office”. This would therefore qualify the office of an MP as a “public office”.
In this regard, it might be said that when Moyo was sworn in as an MP, he became a “public officer” and as such technically, this circumstance triggered the operation of s. 129(1)(g), as read with s. 108(3), meaning that he vacated his Ministerial office when he accepted that “public office”. In this regard, it could be said he lost his office by operation of law and he would have to await re-appointment by the President. This would explain why technically, he is not regarded as a Cabinet Minister in the present circumstances. However, it’s not automatic that he would be re-appointed. That is entirely at the discretion of the President.
The other related provision, which is also a possible explanation is. 129(1)(h) which states that if a person was a public officer at the time of becoming an MP, he would have to relinquish his public office within 30 days of the date that he is declared an MP. If this is read strictly, it would mean that since Moyo was a Minister and therefore a public officer as defined above, he would be required to relinquish the Ministerial office within 30 days of being sworn in as MP, which he still has time to do. Of course, Mugabe can reappoint him to the same post if he wants to. But this might explain why he has been required to give up his Ministerial position as has been reported.
If indeed, the President’s intention is to retain him, he could have easily avoided the drama that has accompanied the occasion by doing a straight-swap, literally moving the chairs or, in other words, moving Moyo from the one chair of Minister as a non-MP to the chair of Minister as an MP. It would have been quick, bloodless and without all the drama. Moyo would still be exercising his functions as Minister, rather than a situation where he has had to go home and await re-appointment, which might or might not come.
This might suggest that there is more to it than mere procedure. If it is merely procedural, then the Government has created unnecessary drama. There is fertile ground to speculate that this is more than just a procedural matter. Surely government lawyers would have known this in advance? Surely someone in government would have anticipated this situation and prepared for it? It’s not as if it was not foreseeable that Moyo would be elected? Why then the drama on something that was easily foreseeable and could have been prepared for in advance? Was someone trying to embarrass Moyo? Did the lawyers in government who raised this not advise Moyo of this possibility when he contested? If so, why?
It’s probable that President Mugabe might be unhappy over something or he might want to use this occasion to do a Cabinet reshuffle, which is entirely at his discretion. He might have another portfolio in mind for Jonathan Moyo, which might explain why he has not followed the simple and straightforward procedure of a straight swap. He might be opening up space for a preferred candidate, perhaps the First Lady herself?
There can be all sorts of speculation as to what President Mugabe is up to and why he has done this. Has he sacked Moyo for good? Or is he merely following procedure? Will Moyo bounce back as Information Minister or will he return in another portfolio? Will he return at all? Is this all part of the succession battles within Zanu PF? We just don’t know.
What is clear at law however, is that the President has the power to appoint and he also has the power to remove. The next few hours or days will reveal more fully what has transpired along Samora Machel Avenue in the corridors of the grand old buildings called Munhumutapa.
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