Mugabe’s appointments unconstitutional – Zimbabwe law experts

HARARE – President Robert Mugabe violated the Constitution and the Global Political Agreement (GPA) when he unilaterally made senior government officials appointments without consulting his two other principals in the inclusive government, law experts hae said.\r\n

Over the past year, the increasingly paranoid 86-year-old leader has appointed provincial governors, judges, ambassadors and other public office holders without consulting Prime Minister Morgan Tsvangirai and his deputy Arthur Mutambara as stipulated by the agreement.

A livid Tsvangirai, whom Mugabe has treated as a junior partner in the shaky coalition government since its formation two years ago, has refused to recognise all the unilateral appointments.

Analysts said the move has shaken Zanu PF and Mugabe who did not expect the turn of events. But on the surface Zanu PF is showing a brave face insisting that the appointments were above board and saying the protest by the MDC leader was inconsequential.

Its spokesperson Rugare Gumbo dismissed Tsvangirai’s reliance on the GPA saying the agreement did not affect Mugabe’s constitutional powers.

“It should be made clear that the GPA itself is not the Constitution of Zimbabwe,” said Gumbo. “For starters, there is nowhere in the Constitution of Zimbabwe or the GPA where it says President Mugabe must consult and get the consent of the Prime Minister when making key appointments such as those of provincial governors and judges.”

But leading constitutional experts said the appointments are unconstitutional and blame Zanu PF for deliberately misrepresenting the law for political gain.

Veritas, a group of law experts, said it was unconstitutional for Mugabe to make senior appointments without consulting Tsvangirai and Mutambara.

It said during the life of the GPA, article 20 prevails over other provisions of the constitution.

“In fact the particular part of the GPA which the appointments breached is now part of the Constitution,” said Veritas. “Constitution Amendment No. 19 provided for the insertion of Article 20 of the GPA as an integral part of the Constitution.  It also made it clear beyond argument that during the life of the GPA, Article 20 prevails over other provisions of the Constitution.”

Veritas said the mistaken interpretation of Mugabe’s powers must have come from the fact that prior to Amendment No. 19 the Constitution “did give the President the sweeping powers still, incorrectly, claimed for him”.

Schedule 8 of the GPA says, “For the avoidance of doubt, the following provisions of the Inter-party Political Agreement, being Article XX thereof, shall, during the subsistence of the Inter-party Political Agreement, prevail notwithstanding anything to the contrary in the Constitution.”

Constitutional law expert Lovemore Madhuku accused Zanu PF of deliberately misinterpreting the law to suit its own political agenda.

“Zanu PF is speaking politically not legally when it comes to issues concerning the operations of the inclusive government,” Madhuku was quoted as saying. “It is nonsense for Zanu PF to say Robert Mugabe has the powers to make senior appointments without consulting the Prime Minister and the Cabinet.” Madhuku teaches constitutional law at the University of Zimbabwe.

Political analyst John Makumbe said while Mugabe violated the constitution by appointing governors and judges, there was nothing wrong with reshuffling ambassadors.

“It’s true in terms of governors and judges but there was nothing wrong with reshuffling ambassadors,” said Makumbe, a fierce critic of Mugabe. “He erred in moving Makarau to the Supreme Court and Chiweshe to Judge President.”

Mugabe elevated Justice Rita Makarau to the Supreme Court bench while Justice George Chiweshe was sworn in as Judge President of the High Court without consulting his two partners.

Makumbe however said the Prime Minister was correct in protesting because the GPA recognises Mugabe, Tsvangirai and Mutambara as equal partners.

The row over the appointment of officials to key positions came to a head when Tsvangirai issued a strong statement complaining of breaches of the GPA by Mugabe.

This followed his meeting with Mugabe, who told Tsvangirai that he had unilaterally re-appointed the 10 governors.

This, said Tsvangirai, was one breach too many of the Constitutional provision requiring his agreement as Prime Minister to the making of key appointments by the President.

He said that with immediate effect the MDC would refuse to recognise all the unilateral appointments that have been made by Mugabe. This includes judges and ambassadors already posted to diplomatic missions.

Tsvangirai has already informed SADC, as underwriters of the GPA, of the looming constitutional crisis in Harare and further advised the UN Secretary – General, Ban Ki-Moon, and the president of European Union Commission, Jose Manuel Barroso, over the legitimacy of the new ambassadors.

Some of the diplomats now face expulsion from host countries following revelations that the European Union (EU) was taking the matter “seriously” and wants “clarification” from the inclusive government.

A spokesperson for EU foreign affairs chief, Catherine Ashton, recently told AFP that the EU was taking the Mugabe-Tsvangirai envoy row serious.

Said Makumbe, “On the aspect of ambassadors the PM made a mistake. The error is on grouping the ambassadors, judges and governors together.” standard