Two days after he was expelled, former Information and Media Minister Jonathan Moyo has gone missing.
Moyo was fired by President Robert Mugabe in a development legal analysts say was deliberate as Mugabe did all under the guise of a technicality of Moyo having been elected an MP saying he needs a new appointment letter.
Moyo’s sympathisers led by Herald Editor Caesar Zvayi rushed to claim his ouster from cabinet was only temporary and he would be installed to his post.
But Moyo who has since switched off his cellphone is reportedly licking his wounds as it becometh clear he was jilted and Mugabe has shut the door on his political fortunes.
He was nowhere to be seen in parliament yesterday as his phone was also turned off.
Mugabe’s legal advisors claim that Moyo had to be removed from office to pave the way for a re-appointment after his return as an MP for Tsholotsho.
Top Legal Analyst Lovemore Madhuku however had a differing interpretation. Dr Madhuku says:
1. A person appointed as a Minister from outside Parliament in term of section 104(3) of the Constitution of Zimbabwe, 2013 does not vacate his or her office as a Minister upon being elected a Member
of Parliament.
2. A person who is appointed from outside Parliament does not become a Member of Parliament. He or she is only entitled to sit and speak in Parliament, but without a vote: section 104(5) . He or
she has the same status in this regard as a Vice President or an Attorney General.
3. The only circumstances in which the office of a Minister becomes
vacant are specified in section 108.
4. Every Minister, whether appointed from in or outside Parliament, ceases to be a Minister if (i) fired by the President, (ii) he or she resigns or (iii) a new President assumes office.
5. Outside the above three situations, section 108 draws a distinction
between ministers appointed from Parliament and those appointed
from outside Parliament. A Minister appointed from Parliament
automatically vacates office as a Minister if he or she loses his or her seat in Parliament: section 108(2). A Minister appointed from outside Parliament remains a Minister if he or she gains a seat in Parliament because subsection 4 of section 108 does not require such a Minister to vacate office in those circumstances. On the contrary, the principle in the constitution is that such a Minister`s position is strengthened when he or she gains a seat in Parliament.
6. The President is only allowed to appoint a person from outside
Parliament on the basis of that person`s “professional skills and competence”. In other words, the President must only appoint persons from outside Parliament if he/she is of the opinion that there are no such professional skills or competencies in Parliament.
The President is limited to only 5 such Ministers. Thus, if some of the Ministers find seats in Parliament, the spirit of the Constitution is satisfied and the President may either not appoint new Ministers from outside or look for other skills still missing from Parliament to
maintain the quota of 5(for outsiders).
7. There is no new procedure required for a Minister appointed from outside Parliament to continue with his or her duties after gaining a seat in Parliament.
8. Regarding the reports surrounding Minister Jonathan Moyo, if it is true that some advice were given to the President suggesting that he ceased being a Minister upon becoming a Member of Parliament, that advice would certainly be an incorrect reading of the
Constitution.
9. The wrong advice may have stemmed from one or both of two situations. The first situation may be that the advisers thought he became a Member of Parliament upon being appointed a Minister and therefore ceased to be a Minister in terms of section 108(2). As
already indicated, a person appointed to be a Minister from outside Parliament does not become a Member of Parliament.
10. The second situation is that the advisers may have misunderstood
section 108(3) which provides as follows:
“.. a Minister or Deputy Minister who was not a Member of Parliament
on appointment as Minister or Deputy Minister vacates his or her office
as such if circumstances arise that would result in his or her seat becoming vacant were he or she a Member of Parliament.”
This provision refers to some aspects of section 129 such as ceasing to be qualified for registration as a voter, being declared insolvent and being convicted of certain offences. The provision has no application whatsoever to the issue of gaining a seat in
Parliament.
1. There are only two legal ways in which Jonathan Moyo may vacate office as a Minister in the current circumstances. These are (i) being fired by the President and (ii) himself resigning.
PROF LOVEMORE MADHUKU
24 JUNE, 2015