The Attorney-General of Zimbabwe (AG), Advocate Prince Machaya, has generated further storm in respect of his bold contention yesterday when he said there is no conflict between s 213 of the Constitution of Zimbabwe and s 37 of the Public Order and Security Act (POSA) in relation to who the power to order the deployment of members of the Zimbabwe Defence Forces (ZDF) to assist police in the maintenance of law and order, is vested.

The issue is whether the constitution is the supreme law of the land or an Act of Parliament can change the address of power and authority to order the deployment of troops in the maintenance of law and order.

In terms of s213 of the Constitution, the President, as Commander-in-Chief of the defence forces, is the only one vested with the power to authorise their deployment in support of the police in the maintenance of public order.

However, in terms of s 37 of POSA, it is the Minister of Defence who is vested with the power that the Constitution reserves for the President.

It provides that the Minister may authorise the deployment of defence forces upon receiving request from the Minister of Home Affairs for the purposes of suppressing civil commotion or disturbances in any district.

“The AG is a creature of the Constitution and being the government’s chief legal advisor who function among others is to promote, protect and uphold the rule of law, it is disturbing that Adv Machaya could possibly hold the view that explicit wording of the Constitution can be varied or altered by a subsidiary law to permit the conflict to be resolved outside the spirit and letter of the Constitution.

It is the case that in terms of the Constitution of Zimbabwe, the authority of the President is derived directly from the will of the people whereas the Minister of Defence possesses no such direct nexus with the people in whose name executive authority ought to be derived,” said Mr. Elvis Mugari, the Founder and President at Combined Restitution Association for Zimbabwean Youths.

Mr. Stanley Dube, the Station Manager of the www.the1873fm.com radio platform, said: “The AG is compelled in terms of s 114 of the Constitution to the chief guardian of the rule of law. It is disturbing that he is oblivious of the limitations imposed by s 2(1) of the Constitution that reads as follows: “This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.”

In the premise, the AG knows or ought to know that POSA to the extent that it confers the authority and power contemplated in s 213 to the Minister of Defence, such authority and power is of no force and effect.

Neither the President nor Parliament can delegate this authority without amending the Constitution.”

Mr. Tapiwa Chitando said: “It is significant that the AG made these averments yesterday while giving oral evidence before the Commission of Inquiry into the August 1 post-election violence that claimed six lives and left a trail of destruction in central Harare.

In this matter, the AG said that: “My understanding of these provisions is that the two should be read in a complementary sense in that the Constitution is the supreme law of the land and POSA, being an Act of Parliament, should be read subject to the Constitution,” yet could then disturbingly conclude that: “Perhaps it could be better phrased, but I do not think it’s an issue of the provision of POSA requiring alignment of the Constitution,” when his job is precisely to protect the rule of law.

The wording of the Constitution is deliberate and specific that the only person vested with this power is and ought to be the President in his capacity as the beneficiary of the people’s sovereign power.”