[Bill-Watch] Bill Watch 7/2015 of 28th February [Attorney-General Appointed: Parliamentary Vacancies and By-Elections]

[Veritas Bill Watch]

BILL WATCH 7/2015

[28th February 2015]

Parliament Will Sit Again on Tuesday 3rd March

At the end of their sittings on Thursday 19th February both the Senate and
the National Assembly started a week-long break by adjourning until Tuesday
3rd March.  At the same sittings the presiding officers announced that all
committee business would also be suspended until Monday 2nd March.  

Attorney-General Appointed

Advocate Prince Machaya was sworn in as  Attorney-General on Wednesday 25th
February.  The post of Attorney-General has been vacant since the former
Attorney-General, Mr Tomana, automatically became the Prosecutor-General on
22nd August 2013, in terms of paragraph 20 of the Sixth Schedule to the
Constitution. 

Mr Machaya was appointed by the President in terms of section 114 of the
Constitution.  Until his appointment he had been filling the vacancy in an
acting capacity.  He has been a Deputy Attorney-General since  2007.

The Attorney-General's functions are listed in that section: 

.        principal legal adviser to the Government 

.        representing the Government in civil and constitutional proceedings


.        drafting of legislation on behalf of Government

.        promoting, protecting and upholding the rule of law and defending
the public interest

.        any other functions that may be assigned to the Attorney-General by
an Act of Parliament.

Section 114 of the Constitution also empowers the Attorney-General:

.        to attend Cabinet meetings, but not to vote

.        to sit and speak in the Senate and the National Assembly, but not
to vote

.        to appear as a friend of the court ["amicus curiae"] in any civil
proceedings to which the Government is not a party.

Under the former Constitution, the Attorney-General was also responsible for
all public prosecutions, but under the present Constitution that
responsibility is assigned to the Prosecutor-General.  In addition, many
statutory functions that were formerly allotted to the Attorney-General by
Acts of Parliament have been transferred to the Prosecutor-General by
amendments to those Acts made by the National Prosecuting Authority Act [Act
5/2014, section 33 and Fourth Schedule, effective 2nd January 2015].

There is an Attorney-General's Office Act [Act 4/2011] that dates from June
2011 but has never been brought into force.  A Bill to amend the Act was
gazetted in February 2013 but never introduced into Parliament; the Bill's
main effect would have been to make the Attorney-General the chairperson of
the Attorney-General's Office Board and make Deputy Attorneys-General ex
officio Board members.  

Comment:  A feature of the present Constitution is that the Attorney-General
is not given the independence and security of tenure given to the holder of
this office under the previous Constitution - and by the Prosecutor-General
under the present Constitution.  

Instead, the Attorney-General holds office at the President's pleasure -
section 115 of the Constitution states that the President may remove an
Attorney-General from office at any time.  This is the same precarious
tenure as that of Ministers and the Vice-Presidents.  The office of
Attorney-General deserves better because, notwithstanding the loss of its
former prosecutorial role, the responsibilities of the office are such that
the incumbent should in principle enjoy the same independence and security
of tenure as the Prosecutor-General - including the safeguard that the
procedure for removal  from office should be the procedure for removal of
judges].

New Minister for Masvingo Province

Senator Shuvai Mahofa is the new Minister of State for Provincial Affairs
for Masvingo Province.  Her appointment by the President was officially
announced on 23rd February and she was sworn in by the President on 26th
February.  She replaced Hon Bhasikiti, whose dismissal by the President was
announced on 19th February.

Electoral Court Judges

The Judicial Service Commission has announced the appointment by the Chief
Justice as judges of the Electoral Court of four High Court judges: Justices
Chinembiri Bhunu, Tendai Uchena, Andrew Mutema and Martin Makonese. The
obvious intention is to have an operational Electoral Court for the purposes
of the current crop of by-elections.  

The appointments are for the six-month period 16th February until 15th
August.  They have been made in terms of section 162 of the Electoral Act -
a section which is inconsistent with section 163 of the Constitution [". a
person must not be appointed as a judicial officer of more than one court"].
This problem has been mentioned in previous Veritas bulletins.  Section 162
of the Electoral Act was not brought into line with the Constitution by last
year's Electoral Amendment Act, as it could and should have been.  

Jurisdiction of Electoral Court  Section 161 of the Electoral Act gives the
Electoral Court "exclusive jurisdiction" to hear appeals, applications and
petitions in terms of the Electoral Act and to review any decision of the
Zimbabwe Electoral Commission or any other person made or purporting to have
been made under the Act.  This covers a wide range of potential cases, from
voter registration disputes to election petitions by unsuccessful
candidates.

ZANU-PF Nominee for Senate Manicaland Party-list Seat

The Zimbabwe Electoral Commission has gazetted ZANU-PF's nomination of Mr
Tongesayi Shadreck Chipanga to fill the Senate vacancy created by the death
of Senator Kumbirai Kangai in August 2013 [GN 33/2015, replacing GN 29/2015
of 20th February, published in error].  Objections to Mr Chipanga's
nominations may be submitted to ZEC up to and including Monday 9th March [14
days after the publication of the GN].  If no valid objections are
submitted, ZEC will gazette another notice declaring him to be appointed as
a Senator.  

Wedza North By-Election Called 

The President has ordered the holding of a by-election to fill the vacancy
in the National Assembly constituency seat for Hwedza North [SI 23/2015 of
20th February].  The vacancy has existed since the death of the former
holder, Hon Musanhu, on 15th January.  

Nomination day  The nomination court will sit on  Monday 16th March at the
Magistrates Court, Marondera. 

Polling day will be Friday 15th May [a date which is four weeks later than
it should have been - as pointed out in Bill Watch 6/2015 of 18th February,
to comply with section 158 of the Constitution and section 39(2) proviso
(ii) of the Electoral Act, polling day should have been no later than 15th
April; because those provisions require polling in a by-election to take
place within 90 days after the occurrence of the vacancy.   

Chirumanzu-Zibagwe and Mount Darwin West By-Elections

The Zimbabwe Electoral Commission has gazetted the names of the candidates
whose nominations were accepted by the nomination courts on 29th January [GN
30/2015 of 20th February].  They are:

Chirumanzu-Zibagwe  Mrs Auxillia Mnangagwa [ZANU-PF]; Mr Gadzamoyo Dhewa
[Good People's Movement Party]; Mr Munashe Mutodza [NCA]; Mr Willbroad
Kanoti [Independent]; Mrs Abigail Musambasi [Transform Zimbabwe].

Mount Darwin West  Mr Barnwell Seremwe [ZANU-PF]; Mr Kenard Fungai
[Transform Zimbabwe]; Mr Cyril Muradzi (Freedom Front]; Mr Rueben Mafigu
[NCA].

Polling day is Friday 27th March.  Polling stations will, in accordance with
the Electoral Act, be open from 7 am to 7 pm.  

Further ZANU-PF Vacancies to be Expected?

MPs expelled from ZANU-PF  Developments within ZANU-PF suggest the
possibility of further Parliamentary vacancies necessitating by-elections.
Last week it was announced that the ZANU-PF Politburo had expelled two MPs
from the party: former Minister of State for Presidential Affairs Didymus
Mutasa, MP for Headlands, and Hurungwe West MP Temba Mliswa. ZANU-PF Dr
Chombo, the secretary for administration elected by the December ZANU-PF
congress, has since given written notice to the Speaker that both
individuals have ceased to belong to ZANU-PF.  Normally this would mean that
their seats immediately become vacant, in terms of section 129(1)(k) of the
Constitution.  But Mr Mutasa has written to the Speaker denying the validity
of the expulsions, and indeed the party congress and everything done at it
and since.  He has also said his court proceedings to establish this are
imminent.  

The Speaker has said he will deal with this correspondence when he returns
to his office on 2nd March.  It  remains to be seen whether the Speaker will
follow what he did when the MDC-T attempted to invoke section 129(1)(k) of
the Constitution against MPs aligned to the MDC Renewal Team in similar
circumstances.  In May 2014 the Speaker said that the situation in the
divided MDC-T was a matter for decision by a court, not for Parliament or
its presiding officers; and in November he maintained this position, saying
the court proceedings launched had not been finalised.  

"Independent" MP readmitted to ZANU-P  It was also announced last week that
the ZANU-PF MP for Mudzi South, Jonathan Samukange had been readmitted to
the party.  [It will be remembered that Mr Samukange, although a long-time
ZANU-PF member, insisted on standing against the official party candidate in
the 2013 harmonised elections and as a result, according to the party
political commissar at that time, Webster Shamu, was automatically expelled
from the party.]  In making last week's announcement the party spokesperson
acknowledged that this meant a by-election was probable.  This is because
section 129(1)(l) of the Constitution provides that a vacancy automatically
occurs if an MP, who was not a member of a political party when elected,
becomes a member of a political party.  

Government Gazettes of 20th, 23rd and 27th February

Statutory Instruments [SIs]

Collective bargaining agreements  SI 22/2015 publishes the minimum wages to
be paid to skilled workers in the construction industry effective from 1st
October 2014; SI 25/2015 publishes the minimum wage for the kapenta sector
of the agricultural industry effective from 1st July 2014.

Wedza North by-election  SI 23/2015 [see above]. 

Customs duty suspensions  SIs 24 and 26/2015 provide for suspensions of duty
in respect of six named mining locations.

General Notices [GNs]

Nomination to fill Manicaland Senate vacancy  GNs 29 and 33/2015 [see
above].

Chirumanzu-Zibagwe and Mt Darwin West by-elections  GN 30/2015 contains the
official announcement by the Zimbabwe Electoral Commission of the candidates
nominated in these two by-elections [see Bill Watch /2015 of .

 

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