Can a Vice President hold a Ministerial Post

Title: Can a Vice President hold a Ministerial post?

Author: Blessed Mupatsi.

Assisted by: Nompilo Nkomo. 

Date: 12 August 2020.

Contact: +263 778097903/ +263 717049679 email: blessedmupatsi@gmail.com

INTRODUCTION.

On the 4th of August 2020, President ED Mnangagwa appointed Vice President Dr. C D G N Chiwenga as Minister of Health and Child Care after the former Minister of Health and Child Care was involved in a Covid-19 procurement scandal. The appointment of Vice President Chiwenga was in terms of section 99 of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 ‘hereinafter referred to as the Constitution’. The reasons for his appointment are in the press statement issued by the office of the chief secretary to the President and Cabinet however, there are not of paramount momentous here. There has been pandemonium regarding the appointment of Vice President Chiwenga as Minister of Health and Child Care. Sentiments expressed on social media by legal experts have left the public discombobulated on whether the appointment is constitutional or not. The matter incepted when the spokesperson of the main opposition Advocate F. Mahere said the appointment was a nullity.  However, Bulawayo Lawyer Sindiso Mazibisa was of the view that the appointment was legal his arguments have been supported by Professor L. Madhuku together with Advocate T. Mpofu. The question is whether the appointment of Vice President Chiwenga is legal or not. 

SUBMISSIONS.

The above sentiments have triggered this commentary to try to resolve the contentiousness. To appreciate this issue one should understand what a Minister in Zimbabwe is. Section 104 of the Constitution made it abundantly clear that a minister is someone appointed by the President and must take an oath of office before the President. 

   104. Appointment of Ministers and Deputy Ministers.

(1) The President appoints Ministers and assigns functions to them, including the administration of any Act of Parliament or of any Ministry or department, but the President may reserve to himself or herself the administration of an Act, Ministry or department.

(2) The President may appoint Deputy Ministers to assist any Minister in the exercise of his or her functions.

(3) Ministers and Deputy Ministers are appointed from among Senators or Members of the National Assembly, but up to five, chosen for their professional skills and competence, may be appointed from outside Parliament.

(4) In appointing Ministers and Deputy Ministers, the President must be guided by considerations of regional and gender balance.

(5) Ministers and Deputy Ministers who are not Members of Parliament may sit and speak, but not vote, in the Senate or the National Assembly.

(6) Before taking office, a person appointed as Minister or Deputy Minister must take before the President the appropriate Ministerial oath in the form set out in the Third Schedule.

    OATH OR AFFIRMATION OF MINISTER

I, ................................................swear [or solemnly affirm] that I will be faithful to Zimbabwe and, in the office of Minister, will uphold the Constitution and all other laws of Zimbabwe; that I will give my advice to the President of Zimbabwe freely and to the best of my judgement whenever I am required to do so, for the good management of the public affairs of Zimbabwe; that I will not disclose, directly or indirectly, any secret that is debated in Cabinet or any secret that is entrusted to me in the course of my duties as Minister; and that in all respects I will perform the duties of my office faithfully and to the best of my ability.

So help me God. [To be omitted in affirmation]

This oath or affirmation is to be taken before the President or, in his or her absence, before the Chief Justice or the next most senior judge available.

Therefore, this is the procedure for a person to be a minister in Zimbabwe. The President ED Mnangagwa in  capacity appointed Vice President Chiwenga to be a minister , in spite of that the Vice President Constantino Guveya Dominic Nyikadzino Chiwenga did not take an oath of office. Some legal experts have tried to calibrate the phrase ‘immediate effect’ to amount to an oath however; this perspective is both fallacious and very misleading. 

The argument raised by Advocate F. Mahere is substantial her argument is entirely based on section 103 of the Constitution. The rationale behind this provision is to ensure that there is no double dipping. Therefore, a President or Vice President at law cannot be a minister or hold any other public office in Zimbabwe.    

  103.  President and Vice-Presidents and former office-holders not to hold other office or employment.

The President and Vice-Presidents, and any former President or Vice-President, must not, directly or indirectly, hold any other public office or be employed by anyone else while they are in office or are receiving a pension from the State as former President or Vice-President, as the case may be.

As highlighted above, the appointment of Chiwenga was in terms of section 99 of the Constitution. The two constitutional provisions sections 103 and 99 are read pari materia. The President can assign a Vice President the power to administer any ministry. The word ‘administration’ is a problematic word especially in public functionaries. The Law dictionary defines administration as the practical management and direction of a department. Therefore, from this definition to hold an office and to administer a ministry are two different things. Thus, section 99 allows a Vice President to administer a ministry but not to hold a ministerial post.   

         99. Functions of Vice-Presidents.

The Vice-Presidents assist the President in the discharge of his or her functions and perform any other functions, including the administration of any Ministry, department or Act of Parliament, that the President may assign to them.

CONCLUSION.

Summarily, a Vice President can administer a ministry but cannot be a minister himself to avoid double dipping. However, Vice President Chiwenga is not a minister because he did not take any oath of office and it is legally wrong for a Vice President to be minister simultaneously. The President misapplied section 99 of the constitution to appoint Vice President Chiwenga as the Minister of Health and Child Care due to the fact that the section creates room for a Vice President to administer a ministry only. The way forward is to withdraw the press statement and alternatively amend it. The decision to make VP Chiwenga Minister of Health and Child Care is erroneous given that we are facing a global pandemic and the field of health is salient during this phase.