“This country is a constitutional democracy which prides
itself with its adherence to the rule of law” – Justice Mathonsi1
Constitutionality in Zimbabwe needs to be viewed against an important aspect of President
Mugabe’s style of governance. Successive Administrations under Mugabe have tended to regard
executive power as plenary – in other words, that government officials may do whatever they deem
necessary to govern, unless constrained by legislation. For this reason, in addition to the
Constitution, general statutes are frequently regarded by Mugabe and his Administration as
restricting executive power, rather than, as is usual in a constitutional democracy, enabling and
authorising its use. Mugabe has little tolerance for any constraints place upon his executive power,
and few have been. However, under the Constitution establishing the Inclusive Government (2009 2013) and the new Constitution (which became law on 22nd May, 20132) Mugabe’s powers were
marginally restricted. Mugabe’s response to these constraints has been to simply ignore them. The
examples which follow are but a few of the many possible.
In terms of the Constitution establishing the Inclusive Government, the President’s extensive
powers remained intact except for two important limitations. One was that all key appointments in
terms of the then Constitution, and under any statute, had to be made with the consent of the Prime
Minister first obtained. 3 This provision was repeatedly ignored.
The Inclusive Government Constitution also fettered Mugabe's power to appoint Ministers. The
number of Ministers he could appoint was set at 31. The establishment of the Ministries appeared in
Article 20.1.6 of Schedule 8 of the Constitution of the Inclusive Government, which was as follows:
There shall be thirty-one (31) Ministers, with fifteen (15) nominated by ZANU PF, thirteen
(13) by MDC-T and three (3) by MDC-M
On the 13th February, 2009, President Mugabe purported to swear into office 35 Ministers and, on
the 19th February, 2009, a further six Ministers, bringing the total to 41, ten more than were
permitted by the Constitution, and agreed in the GPA. As such, the appointments of these ten
additional Ministers were unconstitutional, unlawful, and void – a literal case of executive excess.
Which Ministers were unconstitutionally in office depended upon the order of the swearing-in: once
the quota of 15 ZANU PF nominees was reached, the purported assumption of office by any
ZANU PF nominee thereafter was unconstitutional. The same considerations applied once the
quota of 13 MDC-T and 3 MDC-M Ministers had been reached. Ministers are required to both take
and subscribe to oaths of loyalty and of office. While they all took the verbal oaths simultaneously
on the date of their swearing in, the process was not completed until they had subscribed in writing
to these oaths. The ten that did so after the quotas had been reached were not constitutionally
appointed as Ministers. Of the ten, three were MDC-T nominees, one an MDC-M nominee and six
ZANU PF nominees.4
1
Quoted in the Mail & Guardian May 2 to 8 2014 Judge Cracks Down on Land Outlaws
Specified sections of the new Constitution became law following publication in the Government Gazette on 22 nd May,
2013– “publication day”. The remainder came into force on the “effective date”, the day the President was sworn into
office following the first general election under the new Constitution. That election took place on the 31 st of July,
2013 and President Mugabe, after a short delay, was sworn into office on the 22 nd of August, 2013.
3 Paragraph 20.1.3(p) of Schedule 8 to the Constitution as read with Section 115 of the Constitution.
4 The Ministers in question were as follows: MDC-T Henry Madzorera [Elected Senator] Health and Child Welfare;
Giles Mutsekwa [MP Manicaland] Home Affairs; Sekai Holland [no parliamentary seat] National Healing. MDC-M
2