Terrence Mawawa| Dr Daniel Shumba has said Section 213 of the Constitution of Zimbabwe and not POSA clearly spells out who is responsible for deployment of defence forces.

Dr Daniel Shumba, the former legislator and Chairman of the Parliamentary Portfolio Committee on Mines and Mining Development, says that Mangota J and the Attorney General, Mr. Prince Machaya’s claims that Section 213 of the Constitution and Section 37 of the Public Order and Security Act (POSA) can operate concurrently are wrong in law and in fact.

Dr Shumba said that: “A correct reading of s 213 will confirm the validity of my interpretation that the power to determine the operational use of the Defence Forces in any completing is prescribed and reserved for the President only and is not subject to any delegation whatsoever.

It is provided in s 213 of the Constitution that: “Subject to this constitution, only the President, as Commander in Chief of the Defence Forces as the POWER…” in dispute meaning that the power of the President derives from the people in whose name he can only exercise it. There is no provision for anyone other than this chief servant of the people to hold and exercise this power.

In addition, if the President is a titular head of state, such power will be vested in the Commander in Chief.”

He added:”It is trite that it is only the President who is vested to authorize the deployment of the Defence Forces and this is for good cause. The alternative is to cause anarchy with zero accountability. By limiting the power to a single accountable person, it means that failure to discharge this duty must have consequences including impeachment or the Constitutional Court to intervene in terms of s 167(2)(d).

The President also has the power to determine the operational use of the Defence Forces not least because he is the accounting authority but because he is the constitutional address of administrative authority and power.

It also follows that without the specific authority of the President, no Defence Forces may be deployed in Zimbabwe in support of the Police Service in the maintenance of public order.”

“As a former legislator, I must say I am gravely disappointed that Mr. Machaya would take the erroneous view taken by Mangota J that the power reserved for the President in terms of s 213 of the Constitution can possibly be fraudulently assigned to a Minister of Justice without any legal and constitutional consequences.

This bankrupt worldview is no different from the ignorance he displayed at the Mines and Mining Development Committee hearing on 19 November 2018 when he said that the Reconstruction Act could possibly pass the constitutional muster.

It was disturbing to note that the AG is a man who either is clueless about his obligations as set out in the Constitution or he is part of a cabal that is operating on the basis that they can do as they wish because they are the law. This is scary to have a guardian behaving like a barbarian.

It is clear the AG has now gone beyond the level that is healthy for any constitutional democracy,” said Dr. Shumba.