Legal brief: where we are in Zimbabwe

Veritas, via Zim Guardian:

The negotiating teams in the all-party talks will meet today (Monday) to iron out the remaining issues in the formation of the all-inclusive government.

Parliament is due to resume tomorrow. The Senate will sit on Tuesday 7th October and the House of Assembly on 14th October. The Senate’s agenda is the debate on the President’s Speech at the opening of Parliament in which he outlined Parliamentary business for this session of Parliament. That will be the main agenda of Parliament as no new bills (other than ‘Money Bills’) can be introduced at this juncture – not even the Constitutional Amendment Bill No 19.

The early business of a new Parliament must include setting up the Committee on Standing Rules and Orders, which in turn appoints the Parliamentary Legal Committee and the Parliamentary Portfolio Committees. This cannot be finalized until the House of Assembly resumes its sitting.

New Government

The new Government will only be formed after the enactment of the Constitution of Zimbabwe Amendment No. 19. Many people think when the principals append their signatures the process is finished. That is not correct! Parliament will have to pass the 19th Amendment creating the proposed positions and changes to the Constitution.

Appointment of Prime Minister has not yet been done. The Power-Sharing Agreement is clear on such an appointment. The President “shall appoint the Prime Minister pending the enactment of the Constitution of Zimbabwe Amendment No. 19″. Although the legal meaning of the word “shall” is taken to mean “must”, the nature of that appointment is still very much the discretion of the President.

Two Vice-Presidents have not yet been officially announced although MDC-M leader, Arthur Mutambara and MDC-T Vice President, Thokozani Khupe will occupy these posts once the President has made the necessary formal appointments.

Ministers and Deputy Ministers are still yet to be announced and talks have resumed today in the capital, Harare to discuss the final stages of the configuration and allocation of ministries and the appointment of Cabinet.

Content of Ministerial Portfolios

Under our Constitution the assignment of responsibilities and functions to Ministers is a matter for the President alone, and where the Agreement outlines the powers of the President it merely states that in allocating Ministerial portfolios the President must consult the Vice-Presidents, the Prime Minister and the Deputy Prime Ministers [none of whom have yet been formally appointed yet].

It is important to note that in law a duty to “consult” means the President can follow or reject the views of those consulted, as long as those views are considered.

Also, in theory he could at a later stage make unilateral changes in the assignment of Ministerial functions and responsibilities.

Home Affairs

Some media reports have assumed that if the MDC gets the Ministry of Home Affairs, Zanu PF control of the Police will come to an end. That is not true!

The President appoints the Commissioner-General of Police [under the Constitution] and has the power [under the Police Act] to set policy and to give general directions for the Zimbabwe Republic Police which will override any conflicting policy and directions given by the Minister.

Even the Minister’s power to make regulations for Police matters is limited by being subject to the approval of the Commissioner-General who reports directly to the President. The Minister is, however, responsible for formulating the Police budget and defending it in Parliament.

Ministry of Finance

The delineation of the roles of the Ministry and the Reserve Bank and its Governor are not as simple as certain sections of the media have reported. Assuming also that if the MDC gets the Ministry of Finance, it automatically has power over finance and budget is not true, especially as far as the relationship between the Finance Minister and the RBZ Governor is concerned.

At law, the RBZ Governor is appointed by the President, who is obliged to consult the Minister, but does not have to follow the Minister’s advice. The Reserve Bank has in practice often taken over many of the traditional functions and responsibilities of the Ministry of Finance and the Governor has wielded more power than the Finance Minister in many instances.

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