President Emmerson Mnangagwa, pictured, who replaced long-time ruler Robert Mugabe in July ©Getty Images
MDC leader Nelson Chamisa has claimed President Emmerson Mnangagwa was bluffing on his promises to implement devolution, accusing him of violating the Constitution by appointing Ministers of State for Provincial Affairs.
“He has appointed ministers of State, which appointments are unconstitutional in the first instance and a subversion of devolution. Provincial councils will have no role in circumstances where a province already has an executive minister,” he said, adding that the appointment of 10 Ministers of State for Provincial Affairs was, therefore, void at law.
Top lawyer Thabani Mpofu also said there was no provision in the law which allowed Mnangagwa to appoint Provincial Affairs ministers.
“The Ministers of State are unconstitutional; there is no constitutional sanction for their appointment and their effect, however, is to negate devolution which is constitutionally provided for. How can a provincial council function when there is an executive minister for the province?” he asked.
Kent University law lecturer, Alex Magaisa said the violation of chapter 14 of the Constitution by Zanu PF was clear testament that there was no will to stick to constitutionalism by Mnangagwa’s government.
“Chapter 14 of the Constitution vests power in the people to elect their own provincial leaders through provincial councils. This limits the power of the President to make political appointments. However, when former President (Robert) Mugabe was in charge, he ignored the devolution provisions and appointed Ministers of State. After the coup, President Mnangagwa persisted with this practice,” he said.
Another constitutional law expert Lovemore Madhuku said the appointments undermined devolution.
“That’s not an easy question (whether the appointment was unconstitutional or not). It will need the courts to say. What is easy to say is that they undermine devolution,” Madhuku said.
“Whether it’s constitutional or not, I think it’s a different question because the President has the prerogative to appoint ministers and to assign them functions.”
Mnangagwa, while swearing-in Ministers of State said he was acting in line with the Constitution, which empowered him to make such appointments to aid his government in running the affairs of provinces.
On his campaign trail, the President said his government would implement devolution, a statement that was in sharp contrast with his then Finance minister Patrick Chinamasa, who during his budget presentation last year said the government was bankrupt and could not fund the provincial councils and wanted Parliament to remove the devolution clause from the Constitution.
The 2013 Constitution makes provision for devolution, but Parliament is yet to enact the legislation.
Zanu PF secretary for legal affairs Munyaradzi Paul Mangwana said Mnangagwa was committed to implementing devolution and that appointment of Ministers of State for provinces would not stop the implementation of devolution.
“There is a separation of government and the legislature. The President is exercising executive powers, he has the power to appoint any ministers,” Mangwana said.
Section 268 of the Constitution stipulates that “there is a provincial council for each province, except the metropolitan provinces, consisting of — (a) a chairperson of the council, elected in terms of section 272; b) the Senators elected from the province concerned”.
Constitutional law expert and opposition leader Welshman Ncube said the appointment of provincial ministers was unconstitutional and against Mnangagwa’s stated objectives to implement devolution.
“It is not only a threat to devolution but unconstitutional,” Ncube said. He said with the appointment of Ministers of State, provincial councils would have no role in circumstances where a province already has an executive minister.
“This should be corrected immediately,” he said. “One hopes that they will have a U-turn to this. We expect the provincial council chairpersons to be elected and sworn-in.”