FULL TEXT: Prof Lovemore Madhuku On Resignation Of Vice Presidents

                           LOVEMORE MADHUKU

            (PROFESSOR OF LAW, FACULTY OF LAW, UNIVERSITY OF ZIMBABWE)

BACKGROUND

1. The above question has arisen in the following situation:
   1. After the resignation of Vice-President Mohadi, a Government spokesperson indicated, as a fact, that the Vice-President had given his written notice of resignation to the President about a week earlier than the day that the Vice-President publicly announced his resignation.
   1. The President, despite receiving the written notice, did not give public notice of the resignation. The first time that the public got to know about the resignation of the Vice-President was when the Vice-President himself made the announcement.
   1. Some concerned citizens, on learning that the Vice-President had given written notice to the President a week earlier than his public announcement, expressed the view that the President had breached the Constitution by not giving public notice of the resignation within twenty-four hours as required by section 96(2) of the Constitution.
   1. In response to questions from two journalists, on separate and unrelated occasions, I expressed the following opinion- that section 96(2) of the Constitution does not apply to the current Vice-Presidents and that the section will only apply to  Vice-Presidents after the coming into force of the running mate clause.
   1. My aforesaid opinion was widely reported and attracted various responses. One prominent response was that the opinion was a wrong reading of our law and that I had deliberately promoted that wrong view as an “enabler” to support and/or protect the President. Professor Jonathan Moyo appeared to have led this response in his tweets.
   1. A response of a qualitatively different type came from Dr Alex T. Magaisa. His response was not a mere tweet. In his “Saturday Big Read”, he wrote an article under the title “ Mohadi Resignation: Did President Mnangagwa breach the Constitution?” In direct response to my opinion, Dr Magaisa concluded as follows:  “The argument that it does not apply to the current Vice Presidents, therefore, promptly falls away”.
   1. The conclusion in the Dr Magaisa article is the direct opposite of the opinion I expressed. Judging from the vigorous Twitter debate that followed the Dr Magaisa article, there are now two prominent and mutually exclusive opinions on section 96(2): does it apply to current Vice-Presidents?
   1. On 6 March 2021, I responded to a tweet by Professor Jonathan Moyo in which he was accepting the opinion of Dr Magaisa and saying “ @ProfMadhuku should be professional and admit he was wrong”. My response, was as follows: “The opinion I gave to the media: that section 96(2) of the Constitution only applies to a VP who is a running mate (and thus not applicable to current VPs) is the better view of the law. With respect, I find the article by @Wamagaisa shallow and simplistic, unless meant for Twitter”.
   1. I promised to post a detailed argument showing the scholarly basis of the opinion I hold. What follows below is the detailed argument. For the sake of completeness, I must say that the argument is extracted from a specialized article and is written for reading by both `legally trained` and `not legally trained` persons.

                                 THE ARGUMENT

• Every Constitution has two types of provisions, namely:
  • Express provisions.
  • Implied provisions.

• Express provisions are those that are actually written. We all can read them.

• Implied provisions are not written. They cannot be seen by the ordinary eye yet they exist. To discover implied provisions, one requires an inner legal eye.

• What makes constitutional interpretation a specialist area of the law is the complex interaction between express and implied provisions. In every situation calling for constitutional interpretation, two questions arise. These are:

• What does the Constitution say?
  • What does the Constitution mean by what it says?

• The above two questions arise because a Constitution does not always mean what it says. Because of implied provisions that require an “inner legal eye”, the meaning of a constitutional provision may go beyond what it says. Put differently, we cannot resolve a constitutional issue merely by starting and ending with what a Constitution says: this much is, or ought to be, basic.

• Clearly, therefore, while every person who can read the language in which a Constitution is expressed may gain useful knowledge of the Constitution, not every such person may be an expert in constitutional law. Expertise in constitutional law requires the use of an “inner legal eye” that easily detects the many situations in which implied provisions take centre stage.

• How does an “inner legal eye” detect implied provisions? The answer to this question is simple. Implied provisions come from one or more of the following:

• The intentions of the framers of the Constitution.
  •  The legislative history of the constitutional provisions.
  •  The purpose of the constitutional provisions.
  • The context in which the constitutional provisions are found in the Constitution.
  • The relationship between the provision and other provisions.
  • The internal logic of the Constitution as a whole.
  • The jurisprudence developed by the Courts.

• Different constitutional experts may come to different conclusions about implied provisions. However, what is unacceptable is to treat the Constitution as a simple legal document that starts and ends with its express provisions: proper constitutional meaning comes from the interplay between express and implied provisions.

1. The general principle of law is that a provision is implied IF AND ONLY IF, BY NECESSARY IMPLICATION, IT IS TO BE SO IMPLIED. This is at the core of the law. We will return to it at the point of concluding this argument.

1. Given the complexity of implied provisions and their centrality to constitutional jurisprudence, there is no short cut to gaining expertise in constitutional law.

1. Having outlined the foregoing, we can easily understand section 96(2) of the Constitution.

1. Section 96 itself appears in Part 2 of Chapter 5. The heading of Part 2 reads: “THE PRESIDENT AND VICE-PRESIDENTS”. Part 3 of Chapter 5 has the following heading: “MINISTERS, DEPUTY MINISTERS AND CABINET”.

1. We see from the structure of Chapter 5 that the Constitution puts the President and Vice-Presidents together and separates them from Ministers and Deputy Ministers. Why is this so? The answer is that the Vice-President in Part 2 of Chapter 5 is a running mate Vice-President who is treated as such throughout that Part.

1. Part 2 runs from sections 89 to 103. The reference to Vice-President in each of the sections in Part 2 is to the Vice-President who is a running mate. It is common cause that before we bring in the transitional provisions in paragraph 14 of the Sixth Schedule, the Vice-President in Part 2 is a running mate Vice-President.

1. Thus, for the framers, before we bring in the transitional provisions in paragraph 14 of the Sixth Schedule, section 96(2), like every other provision in Part 2, refers to a running mate Vice-President.

1. It is also common cause that when we bring in the transitional provisions in paragraph 14 of the Sixth Schedule, not every provision in Part 2 applies to current Vice-Presidents. Thus, some provisions in Part 2, although framed for running mate Vice-Presidents also apply to current Vice-Presidents while others will not apply to current Vice-Presidents.

1. For the avoidance of doubt, when we bring in the transitional provisions in paragraph 14 of the Sixth Schedule, the provisions on Vice-Presidents in Part 2 of Chapter 5, as they currently stand, are in two categories, namely:
   1. Those that only apply to running mate Vice-Presidents.
   1. Those that also apply to current Vice-Presidents.

1. The SOLE question therefore is: Do the transitional provisions in paragraph 14 of the Sixth Schedule make section 96(2) on running mate Vice-Presidents also apply to current Vice-Presidents? Put differently, in which category is section 96(2)? Is section 96(2) in the category of (i) those that only apply to running mate Vice-Presidents or (ii) those that also apply to current Vice-Presidents?

• I believe I have clearly set out the question to be answered.

• In answering that question, we turn to our express and implied provisions.

• Let us start with express provisions. The express provisions of paragraph 14 of the Sixth Schedule tell us that sections 92 and 101 are in the category of those that only apply to running mate Vice-Presidents.

• As I have indicated above, express provisions cannot be the end of the matter. While sections 92 and 101 are expressly excluded, there are several other provisions in Part 2 that are impliedly excluded. These other provisions are impliedly excluded by applying the test I outlined above: a provision is implied IF AND ONLY IF, BY NECESSARY IMPLICATION, IT IS TO BE SO IMPLIED. Section 96(2) is one such provision that BY NECESSARY IMPLICATION is excluded.

• We turn first to provisions other than section 96(2) that are also, BY NECESSARY IMPLICATION, excluded from applying to current Vice-Presidents. Here I will pick those that clearly do not apply to current Vice-Presidents. These are:
  • Section 91: The reference to Vice-President here is to a running mate: although not expressly excluded, by necessary implication, it does not apply to current Vice-Presidents (QUALIFICATIONS FOR ELECTION)
  • Section 93: The reference to Vice-President here is to a running mate: although not expressly excluded, by necessary implication, it does not apply to current Vice-Presidents( CHALLENGING ELECTION OF VICE-PRESIDENT)

• Section 94: The reference to Vice-President here is to a running mate: although not expressly excluded, by necessary implication, it does not apply to current Vice-Presidents(ASSUMPTION OF OFFICE OF VICE-PRESIDENTS)

• Section 95: The reference to Vice-President here is to a running mate: although not expressly excluded, by necessary implication, it does not apply to current Vice-Presidents(TERM OF OFFICE OF VICE-PRESIDENTS)

• Section 97: The reference to Vice-President here is to a running mate: although not expressly excluded, by necessary implication, it does not apply to current Vice-Presidents( IMPEACHMENT OF VICE-PRESIDENTS)

• Section 100: The reference to Vice-President here is to a running mate: although not expressly excluded, by necessary implication, it does not apply to current Vice-Presidents (ACTING PRESIDENT)

• The point I am making in paragraph 24 is this: apart from sections 92 and 101 that are expressly excluded by the provisions of paragraph 14 of the Sixth Schedule, there are other provisions in Part 2 that, BY NECESSARY IMPLICATION, do not apply to the current Vice-Presidents.

• It is clear to me that section 96(2), BY NECESSARY IMPLICATION, does not apply to current Vice-Presidents. I respectfully so submit below.

• At this point, I will deal with what it is that leads me to the firm conclusion that, BY NECESSARY IMPLICATION, section 96(2) does not apply to current Vice-Presidents.

• As a reminder, please refer to paragraph 8 above for the factors that are normally considered in saying whether or not there is a NECESSARY IMPLICATION. For me, all the six factors from 8.1 to 8.6 lead to the irresistible conclusion that section 96(2) does not apply to current Vice-Presidents.

• Let us reproduce the whole of section 96:

“ (1). The President may resign his or her office by written notice to the Speaker who must give public notice of the resignation as soon as it is possible to do so and in any event within twenty-four hours.

   (2). A Vice-President may resign his or her office by written notice to the President who must give public notice of the resignation as soon as it is possible to do so and in any event within twenty-four hours.”

• I will rely on just a few factors from paragraph 8 above.

• The factor of “intentions of the framers of the Constitution”[ para 8.1] quickly springs to the surface. The framers must have had in mind only the running mate Vice-President who was part of an elaborate succession plan they had provided for in section 101. By expressly excluding section 101 from the current Vice-Presidents, section 96 automatically became excluded as well.

• Take the factor of “ the purpose of the constitutional provision”[para 8.3]. The purpose of the public notice within 24 hours of the resignation arises from the fact that these are elected officials: it is a notice to the electorate. It is significant that in the entire Constitution, it is only in respect of the Presidency that public notice of the resignation must be given within 24 hours. This is because the Presidency is the only public office that involves the entire public in respect of elections. Section 96 is therefore premised on a direct election of the Presidency. It records a constitutional principle: the body that elected or appointed an officeholder must be informed promptly of a resignation.

•  Where a Vice-President is not elected but appointed by the President and holding office at the President`s “pleasure”, the purpose of section 96 does not arise. This point becomes clearer when regard is had to other resignations of public officials: there is no requirement for public notice of resignation in respect of Ministers and Deputy Ministers [section 108]; Speaker [ section 126), President of Senate [section 122], Member of Parliament [section 129] and Chief Justice and other judges [section 186]. The only reason why a Vice-President in section 96(2) is treated differently from all these other public officials is his/her election as a running mate.

• With the factor of “the internal logic of the Constitution as a whole”[para 8.6], it is clear from section 96 that the only difference between the President and a Vice-President is on the public officer to whom the written notice of resignation is sent: Speaker (in the case of the President) and President (in the case of the Vice-President). From this structure, section 96 falls typically into the category of provisions such as sections 91, 92, 93, 94, 95 and 97 that place the Vice-President in the same category with the President because the Vice-President is a running mate. Where a Vice-President is not elected but appointed by the President and holding office at the President`s “pleasure”, the internal logic inherent in section 96 does not arise.

• In my view, it is inescapable that on a proper reading of the Constitution,  section 96(2) of the Constitution does not apply to the current Vice-Presidents. The section will only apply to  Vice-Presidents after the coming into force of the running mate clause.

Lovemore Madhuku

                                                    7 March 2021