By Professor Lovemore Madhuku

The reason we are condemning the amendment is very clear, we have two grounds that are very solid. The first one is that the amendment is not a people-driven process which is contrary to what a constitution must do. The making of a constitution must be by the people, its amendment must also be by the people. So, both the process of making a constitution and its amendment must be people-driven. This did not happen.

The amendment process was purely and exclusively driven by Zanu PF as a ruling elite, by Zanu PF as a political party and Zanu PF politicians.

The second ground why we are condemning the amendment process as NCA is that it was done contrary to very solid and overwhelming public opinion against it. So, apart from the fact that Zanu PF did it single handedly and for its own purpose, there was overwhelming public opinion against it.

As NCA, we have evidence of that public opinion against it: we are members of the Political Actors Dialogue (POLAD), and within POLAD there was a lot of discussion around Constitution of Zimbabwe Amendment (No. 2) Bill then. The position that was adopted in POLAD was that this Bill must be withdrawn, that there must be further consultations to ensure that you actually only amend the constitution to address other concerns that would address electoral reforms ahead of 2023.

At one point we got some understanding that the bill would not be pursued, and we were out in the public domain praising that stance that had been taken within POLAD. Unfortunately, that did not happen.

The POLAD one is just one example of public opinion, but we also know that there was a public consultation by parliament where the report of the parliamentary portfolio committee showed that a majority of Zimbabweans who were consulted said “no” to the amendment process. It was clear that there was overwhelming public opinion against going ahead with the amendment.

Our second point as NCA is that we notice in the amendment that the content is extremely dangerous for the country. It is a continuation of what is already in the constitution where power is consolidated in the president, but what is even more dangerous in respect of this amendment is that it personalises that consolidation. It is very clear that power is now being concentrated not in the hands necessarily of an office, but of an individual who is in office and that is a very dangerous approach.

The debate on the running mate clause being removed, the debate on the power to appoint judges or to extend the term of judges and so forth… it is all about the personal love for power by President Emmerson Dambudzo Mnangagwa, and this is what is reflected in the amendment. As NCA, we notice a very dangerous trait in Amendment No. 2, it takes it a level above what we are used to.

We have been in this game to say that we need a people-driven constitution and at one point we were dealing with President (Robert) Mugabe and some people thought it was all about Mugabe. What has happened with Amendment No. 2 is that the current president has gone much beyond what President Mugabe was doing in terms of loving power as a person, and concentrating it. It shows the trait where the president came out in a video and was recorded as saying “2030 ndinenge ndichipo” (2030 I will still be here) – this is what Amendment No. 2 is all about, we are noticing that this is actually what’s happening. It’s a dangerous trait and we have to call upon Zimbabweans to be alive to that process because there is no other reason why the president will ignore every other advice that he was given.

If you look at that amendment, there’s this thing that is actually creating a lot of problems, where the constitutional amendment is put in place just days before the retirement of the Chief Justice (Luke Malaba). The message being put across to the public is that there would be certain individuals, certain persons who are more important than others, in other words they could be such unique individuals that the country cannot do without. We find that a very dangerous trait.

We respect the Chief Justice and the work that he has done, but we don’t believe that this is a time where individuals can say to the world, “I’m so crucial, you cannot do without me and so I would accept a personal extension of a term of office via a constitutional amendment.” That’s very dangerous. The boast that “2030 ndinenge ndichipo” might actually mean that there is a target to amend the constitution again.

Our third point as NCA is what we believe is the way forward for Zimbabweans. We have an NCA approach which we call upon Zimbabweans to embrace and to understand, and it is that constitution-making is a political issue. Zimbabweans must engage with this issue politically, meaning we engage in a debate that this is not right, this is not fair, this is unjust. Our debate must focus on that and we go down to all people to make them understand that what has happened is bad.

What has happened confirms the NCA fear in 2013 when we campaigned for a no vote because of our belief that a constitution must never come from politicians, it must never come from the ruling politicians. This amendment and the way it happened shows that we were right after all, we are still right and the debate must be more about engaging people on the goodness and the badness of the amendment – that’s what politics is: “This is bad, this is unacceptable; this is bad, this is unacceptable.” We debate it that way. That debate is very different from a debate that says, “this is legal, this is illegal; this is constitutional, this is unconstitutional”. Such a debate is good, but it must not be the primary debate for the country because such a debate will focus it on lawyers and those who understand what is legal and what is illegal, what is constitutional and what is unconstitutional.

We call upon Zimbabweans to take the debate at a higher level and say this is bad what has happened, and we all agree that it is bad. We cannot just change the constitution the way it was done. That will be the NCA; in our approach we will politicise it, we will continue to criticise the Zanu PF approach, we will continue to do it in all platforms and we will go down to the people to mobilise.

As NCA we support the initiatives by other Zimbabweans who have a different view on how to approach this issue. Other Zimbabweans have their own approach and we respect that. Our approach is let’s politicise the matter, let’s go out there and tell ordinary people so that they become part of the debate. It must not become a social media, an elite or clan debate. That’s our approach, but we realise that other Zimbabweans have another approach and that approach is to go to court and challenge these things, we support those approaches. We are not here to say that strategy does not work.

Finally, number four, does this affect the NCA’s participation in POLAD? The NCA will remain in POLAD. We failed on Constitutional of Zimbabwe Amendment (No. 2), and that is done. But we don’t believe that we will fail in other initiatives that are on the agenda. We had two items on the agenda. The first one was on the constitution-making process which was a governance issue. We did everything, we mobilised other members in POLAD and they accepted our viewpoint but Zanu PF pushed it out and we failed.

The second thing was on electoral reforms ahead of 2023. There is already an Electoral and Political Parties Amendment Bill that is being discussed within POLAD with a number of reforms within the proposed Electoral Amendment Bill and the proposed Political Reforms Bill. We will remain there for the purposes of ensuring that that attempt is exhausted. We don’t support the view that when you are disappointed on one, then you throw away everything else. There are Zimbabweans out there who might not take that view, but that’s our view.

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The claim of POLAD not being a true dialogue platform seemed to be confirmed when in January of 2019, the government went ahead to gazette a controversial Constitutional Amendment Bill, which had not taken into consideration POLAD member’s proposals regarding constitutional changes.

If the allegation of joining POLAD is true, it begs the question, why then would a leader of an opposition party choose to be a part of such a dialogue platform after some resistance?

Well, in the vote of thanks speech Hon Douglas Mwonzora gave during the launch of the second vaccination program in Victoria Falls, stated that “politics of divisive vancour are a thing of the past” He suggested that the political outlook had changed from “political self-aggrandisement” to putting the nation first. He continued to share the following sentiments:

“We don’t want politics of hunger, hate and intolerance. As leaders of the opposition we should work for the betterment of the economy to save our people and also support the vaccination programme.”

Watch a snippet of the Honorable’s speech below:

Mwonzora’s move has been viewed as affirmation of suspicions that the MDC-T has been fraternising with the ruling party in and attempt to wipe out the main opposition party led by Nelson Chamisa.

Some have pointed to that this move could be the same strategy of political survival described by the late President Robert Mugabe as the “Madhuku Strategy.” The only difference in this case would be that instead of the opposition causing havoc in the ruling party as was described by the late ex-President, it is viewed as the ruling party’s attempt at disarming the opposition Party since the 2023 elections are fast approaching.

Watch as the Late President describes the “Madhuku Strategy” below:

Fadzayi Mahere, spokesperson for MDC-A led by Nelson Chamisa had the following sentiments to share regarding this move:

“We will take all necessary steps to stop the attempt by Zanu PF and its surrogates who usurped the will of the people to create a one-party State. The regime must respect the democratic and constitutional rights of the citizens to challenge its policies and offer alternatives for the betterment of the nation,”

However, amidst claims that Mwonzora is being used as a puppet by the ruling party and has joined POLAD, he shared the following sentiment:

“It’s a national event where people unite to fight the pandemic. We have nothing to do with Polad. This is not a Polad event”

What are your thoughts on these opinions?

Let us know in the comment section below.

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I will try to set out the law in as clear a manner as I can. I will in this regard proceed on the assumption that this “response” will be consumed by lay people. For that reason, I have decided to go soft on “the technical”. It is not lost on me that modern constitutions are made for lay people, explaining why it is a constitutional imperative for the text of the constitution to be translated into vernacular languages.

Approach to constitutional interpretation

2. This matter is all about constitutional interpretation. There are so many principles that bear on the matter, some of which have been relied upon by Prof Madhuku. I do not intend to deal with all such principles. I will confine myself to those that concern this response. I will render the principles in my own words and give them my own form given my target audience. For that reason, I will call them processes. They are as follows:

2.1         The first step in constitutional interpretation requires one to consider the text of the constitution. It is the text that constitutes the constitution and not some indeterminate spiritual principle. If the text is clear on the subject matter, subject to what I will say below, effect must be given to it.

2.1.1      I must immediately indicate that Professor Madhuku’s approach is steeped in the English approach to constitutional interpretation. The British have no written constitution, that’s why they have “inner eyes” and obscure principles understood only by elites.

2.2         The second step is to consider all the provisions of the constitution that bear on a particular matter. The idea is that a particular provision speaking to an issue must be understood in the context of the entire constitution. These provisions combine to create the so called “spirit of the constitution”. The spirit of the constitution is something that can be understood by someone reading the constitution in ChiTonga and is not a preserve for lawyers. If all the provisions considered say one thing, that is the end of the matter. You don’t ask, “What has the inner eye seen?”

2.3         The third applies under circumstances where there is no clear provision bearing on the matter. If there is a power to be exercised or an obligation to be discharged, the question must be asked whether the exercise of that power or the discharge of the obligation or otherwise the enjoyment of a right is to be implied – see section 342 of the Constitution. This only happens if the constitution is silent on the matter. On the authority of section 342 however, there must be some constitutional conferment on the basis upon which an implied power is found to exist.

2.3.1      The need for implication lies in the fact that a constitution cannot cater for all conceivable legal eventualities. For that reason, it must be “a living organism” and those dealing with it must treat it in a manner that “eschews the austerity of tabulated legalisms.”

2.4         These three principles explain Prof Madhuku’s reference to express and implied provisions, incorrectly called by him, terms (Express and implied terms are found in contract law, interpretation deals with provisions).

2.5         Another principle of importance is that the duties imposed by the constitution on politicians must be clear. Put differently, politicians do not need to have “an inner legal eye”. The constitution must speak to them in clear terms. The framers of the constitution knew that there would be politicians like Hon… (supply the name, I don’t want to risk an arrest). The following are the reasons for that position:

2.5.1      Grave consequences attend upon a failure by politicians to obey the constitution. Any constitutional obligation that might lead to consequences being visited upon politicians must be clear. It must be clear to the politician reading the constitution in the “Buhera dialect of Shona.”

2.5.2      A constitution is a political document. That being the case, on questions of governmental power, it must speak in clear terms to the citizens against whom or for whose benefit political power is exercised.

2.6         This evidently, and as you have already noted, is not the approach taken by Professor Madhuku. Professor Madhuku takes the constitution to be an elite document which can only be understood by 3,000 people in this country. Ngeke!

The constitutional position on the subject

3             Our constitution has two types of provisions governing the subject matter, and once again I speak in lay terms. The first are the provisions contained in the “substantive part” of the constitution. The second, are the provisions contained in the schedule, which are transitional in nature.

3.1         The purpose of transitional provisions is broadly speaking the following:

3.1.1      To retain the legality of that which was substantively legal under the old order.

3.1.2      To retain the legality of constitutional officials who had lawful authority under the old order and which must be carried into the new.

3.1.3      To fill in gaps that would inevitably exist between what used to be and that which now is.

3.1.4      To transition to the new in as smooth a manner as is possible.

3.2         In that regard, the constitution recognises that for the first 10 years reckoned from 2013, an executive structure with unelected Vice Presidents will be in place. This is dealt with in the Sixth Schedule and is a continuation of the old.

3.3         The provisions governing unelected Vice Presidents are, however, set out in both the substantive part of the constitution as well as in the transitional provisions. It is important for purposes of illuminating the subject matter that the provisions set out in the schedule be identified, isolated and their effect spoken to:

3.3.1      Paragraph 14(1) which provides that in the first 10 years reckoned from 2013, there won’t be any running mates.

3.3.2      Paragraph 14(2) which provides that a person elected in the two elections (2013 and 2018) must nominate not more than two Vice Presidents who must hold office at his pleasure.

3.3.3      Paragraph 14.3 which provides the manner of the exercise by the Vice President of the role of Acting President.

3.3.4      Paragraphs 14.4 and 14.6 which provides for succession in the event of death of the President.

3.4         What must be noted is that the Sixth Schedule restricts itself to formal issues. There is nothing that speaks for instance to the values that must govern a vice president. There is nothing that speaks to a vice president’s obligations, or even terms of service. To say that a vice president is only governed by the Sixth Schedule to the exclusion of the substantive body of the constitution is to claim without a basis that both a vice president and his/her president do not in the first 10 years have any form of constitutional restraint placed upon them.

3.5         The substantive portion of the constitution also has provisions that pertain to vice presidents. It is easy to see which provisions apply to an elected vice president, which provisions apply to an unelected vice president and which provisions apply to both. This with respect and in my view, is where Prof Madhuku has not done justice to the subject matter. The need for the provisions to be considered in that manner assumes ascending importance when one has regard to the limitation(s) of the Sixth Schedule as already set out above.

3.6         I will quickly go through the relevant provisions:

3.6.1      Sections 91, 92 and 93 deal with qualifications for election to the office of vice president. This will obviously take effect after the first 10 years.

3.6.2      Section 94 which deals with assumption of office upon the taking of the oath of office before the Chief Justice or the next available senior judge. I believe Mohadi took this oath of office and that it was important that he does so before executing any constitutional function. This provision applies to both elected and unelected vice presidents (If I am wrong on this one I enjoy the Chief Justice’s company).

3.6.3      Section 96(2) deals with resignation. This is the only provision that deals with the resignation of a vice president. The Sixth Schedule is silent on the matter. There is nothing that limits the applicability of this provision to an elected vice president. To hold otherwise would leave the constitution, for no good reason, without a provision which regulates the resignation of a vice president. That is both dangerous and unnecessary.

3.6.3.1  I must point out that former President Robert Gabriel Mugabe correctly resigned in terms of section 96(1). It would be absurd to say a president can resign in terms of section 96(1) but a vice president cannot resign in terms of section 96(2). In fact, if Professor Madhuku is correct, then Mugabe did not resign and Mnangagwa’s assumption of office and everything that has followed such assumption is tainted with illegality. Varasiki, benefit from the wisdom of the Shona: “Chenjera kufarira n’anga neinobata mai.”

3.6.4      Section 97 deals with the “impeachment” of a vice president. There is no similar or equivalent provision in the Schedule. This provision applies to both elected and unelected vice presidents given that both can be impeached. To hold otherwise would leave us with a constitution which does not allow for the “impeachment” of a vice president during the first 10 years. That’s simply absurd.

3.6.5      Section 99 deals with the functions of a vice president. There is no doubt again that this relates to both an elected and unelected vice president given that both exercise functions. Indeed, the Sixth Schedule does not deal with this issue. It would be infantile to argue that this provision does not apply to an unelected vice president. Elected or unelected, a vice president must discharge a constitutional function.

3.6.6      Section 100 deals with the exercise of functions by an Acting President as well as the mechanics that attend upon the issue. To the extent that there is a competing provision in the Sixth Schedule, it is that provision that takes effect by reason of paragraph 2 of the Sixth Schedule. Put differently, section 100 only governs elected vice presidents.

3.6.7      The same goes for section 101 which deals with succession in the event of death.

3.6.8      Section 102 deals with the remuneration of Vice Presidents. Although the Sixth Schedule says nothing about the matter, it is clear that a vice president must be remunerated. This provision accordingly governs both elected and unelected vice presidents.

3.6.9      Section 103 provides that a serving or former vice president must not hold any other paid employ either during the period of their service or after the expiry of such service, if they are still receiving a state pension. It goes without saying that this pertains to both elected and unelected vice presidents.

3.6.10    Section 106 is a Code of Conduct for both vice presidents and ministers. There is no similar Code in the schedule. Any executive official must submit themselves to the wholesome restraint of the constitution. This pertains to both elected and unelected officials.

3.6.11    Section 107 deals with the accountability of vice president to the president. It is puerile to argue that it is only elected vice presidents who are accountable to the president and that those that serve at his pleasure are not so accountable. This provision also deals with the obligation cast upon vice presidents to attend Parliament. That obligation is upon both elected and unelected vice presidents.

3.7         It is therefore clear upon a consideration of the substantive text of the constitution that there are provisions that (i) pertain to both elected and unelected vice presidents and (ii) those that only pertain to elected vice presidents. The dispute has to be on how section 96(2) is to be characterised. To that issue, I turn.

The relevant transitional structure

4             With these provisions having been identified, it is important that we consider first, whether the constitution helps us answer the question regarding the status of s96(2). Put differently, the question has to be whether section 96 has commenced its operation.

4.1         I believe, with respect, that Professor Madhuku has on this aspect chosen to rely on esoteric quackery and sophistry, ignoring in the process the relevant constitutional provisions. In particular, Professor Madhuku argues on implied powers and the whole lot whilst ignoring a specific provision that governs the matter. He has committed a cardinal sin of interpretation. You can’t “play football without a football”. Professor Madhuku has interpreted the constitution whilst ignoring the most relevant constitutional provision governing the subject matter. As indicated, ours is not like the British system where the constitution is unwritten.

4.2         Paragraph 3(1) of the Sixth Schedule sets out provisions which came into operation on the publication day being May 22, 2013. These are the provisions that immediately became law when the constitution was assented to and published. Not all provisions of the constitution became law upon the publication of the constitution.

4.3         Paragraph 3(2) provides as follows:

Except as otherwise provided in this Schedule, the rest of this constitution comes into operation on the day on which the president elected in the first elections assumes office.

4.4         You will need to recall the distinction that I drew earlier between the two types of provisions constituting our constitution, the substantive text and the transitional provisions. This provision says and means that the rest of the constitution (substantive text) came into effect in August 2013. What is only excepted are those provisions set out in the Schedule which will come into effect after the expiry of the 10 years constitutionally provided for.

4.5         The schedule sets out those provisions which will come into effect after 10 years, either directly or indirectly. The fact that there are three dates on which provisions of the constitution will come into effect needs to be emphasised.

4.6         In those instances where the schedule clearly states that it has precedence, it takes effect – see paragraph 2 of Part 1 of the Sixth Schedule. See for instance paragraph 14.1 which provides, “Notwithstanding section 92…” In clear terms, the Schedule provides that whatever the substantive text says, in that instance, it takes effect. This is an instance where the schedule directly deals with the matter as envisaged by paragraph 3(2) cited above.

4.7         The schedule does also deal indirectly with the matter where it establishes “a system” based on an unelected vice president. What this means is that the provisions in the substantive text that deal with an elected vice president are automatically excluded. I have already set out those instances above. Everything else applies.

4.8         Indisputably, the question of resignation is not dealt with either directly or indirectly. That being the case and consistent with paragraph 3(2), the substantive text has now taken effect. Section 96(2) is the “rest of the constitution” in the words of paragraph 3(2) cited above. It is alive.

“The inner legal eye”

5             Unable to deal with the transitional provision which is clear to the naked eye, Prof Madhuku has now created what he calls an “inner legal eye”. He is supposed to have this eye and everyone else who disagrees with him doesn’t have it. With respect to a man of great learning, a naked eye can see the applicable provision that has been missed by his “inner legal eye”.

5.1         This resolves the express and implied provisions debate. You cannot imply the absence of a duty under circumstances where the duty is expressly provided for. The effect is that Professor Madhuku’s efforts have nothing to do with interpretation but are an act first of de-creation, in that he destroys an extant provision, and second, of creation, in that he creates using a dubious inner legal eye.

Only to an elected VP

6             Professor Madhuku’s inner legal eye sees him conclude that the obligation to notify only pertains to an elected vice president. He reasons that the fact of the election obliges the existence of such a duty. He relies on no constitutional provision for this breath-taking view. There are so many problems with this conclusion and I only highlight two:

6.1         First, it plainly does not make sense. The vice president is a high ranking constitutional official who assumes the powerful position of the president on occasions. The nation must obviously be advised of his resignation within a period of 24 hours of its occurrence? Why should that be tied to an elected president? Does a vice president, in the first 10 years of the constitution exercise lesser powers than those of an elected vice president?

6.2         Constitutional construction in a constitutional democracy is all about placing obligations and restrictions on the executive. This is how executive power is kept in check. This approach is taken at all times and for all purposes unless the placing of such obligations or restrictions is unduly burdensome or onerous. What is unduly burdensome about notifying the country that a vice president has resigned? Quite frankly its such a shame that I have to make this point against Professor Madhuku.

What I accept

7             In the interests of fairness, it is important that I set out what I consider to be the correct legal position(s) as expounded by the professor. I am content as a general position to say that I accept the correctness of most of the principles that he places reliance upon. It is their relevance to this matter that I query, particularly given the disconnect between those principles and the clear and operative legal provisions at play. I do not accept however, that there is an inner legal eye that must see things that are not and ignore those that are.

7.1         For the avoidance of doubt, I accept as sound in law, the following propositions:

7.1.1      That constitutional interpretation is a matter of dealing with express and implied provisions subject to the rider that express provisions must at all times and without prejudice, take effect.

7.1.2      That even if a power, duty or right is not expressed, it can by proper interpretation be implied but only in terms of section 342 of the constitution. Put differently, there must always be a substantive provision on the basis upon which the implication takes place.

7.1.3      That there are provisions in the constitution which indisputably speak only to elected vice presidents.

Conclusion

8             My conclusion is that Professor Madhuku’s views are at best specious. My point of departure is that he seeks to imply under circumstances where there is an express provision. In doing so, Professor Madhuku ignores a relevant provision which in the very least, he was obliged to have explained away. I also come to the conclusion that the application of section 96(2) to an unelected vice president is not inconsistent with the constitutional design and, just like other similar provisions bearing on the issue, has now taken full effect.

In the result, I come to the conclusion that President Mnangagwa violated the constitution in not informing the country that former Vice President Mohadi had resigned.

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DOES SECTION 96(2) OF THE CONSTITUTION OF ZIMBABWE, 2013 APPLY TO RESIGNATIONS OF CURRENT VICE-PRESIDENTS?

    BY

                           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

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