The handling of former Vice President Kembo Mohadi’s resignation has prompted the question of whether President Mnangagwa breached the Constitution regarding his duty to notify the public of the resignation. The matter arose following a comment by President Mnangagwa’s spokesperson, George Charamba, using his Twitter handle @Jamwanda2, to the effect that VP Mohadi had tendered his resignation a week before he officially announced it on 1 March 2021.
One view, which was raised by journalist Violet Gonda and Professor Jonathan Moyo was that President Emmerson Mnangagwa violated the Constitution because he did not comply with section 96(2) of the Constitution which requires him to give public notice of the resignation within 24 hours. Charamba responded with the argument that “there is a difference between handing in a resignation and effectively resigning, which takes one and his appointing authority”. On this view, VP Mohadi’s resignation was not complete until the President had accepted it.
A third view has emerged through a report on Newzimbabwe.com, and it is attributed to Professor Lovemore Madhuku. The argument is that the provision under which the President is required to give public notice of a VP’s resignation does not apply to the current situation. He argues that the tenure of Vice Presidents is regulated by the Sixth Schedule to the Constitution and the President has no duty to give such public notice and VPs can just resigned like other Cabinet Ministers.
The critical questions may be summarised as follows: is the President required to give public notification of a Vice President’s resignation under section 96(2) of the Constitution? And if he fails to do so, is he in breach of the Constitution?
To answer these question we must start by looking at the content of Section 96(2) which states as follows:
“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.”
The answer to both questions is in the affirmative: the President must give public notice within 24 hours of the resignation and failure to do so is a breach of the Constitution.
Does section 96(2) apply to the current Vice Presidents?
We must start by disposing of the argument that section 96(2) does not apply to the current Vice Presidents. It is trite that every constitutional provision is valid and applicable unless it is specifically excluded by the Constitution. For example, section 92 of the Constitution is specifically excluded from operation by section 14(1) of the Sixth Schedule. Section 101 is also specifically excluded by section 14(4) of the Sixth Schedule. On the other hand, no provision excludes the operation of section 96(2) of the Constitution. The argument that it does not apply to the current Vice Presidents, therefore, promptly falls away.
It is true that currently, in terms of section 14(2) of the Sixth Schedule, a Vice President serves at the pleasure of the President. This means in part that he or she can be fired by the President for any reason or no reason at all. However, a Vice President is not tied to his job just because he or she serves at the pleasure of the President. He may resign for any reason or no reason at all. This is why section 96(2) allows him or her to give written notice of his or her resignation to the President. The written notice creates an obligation to the President. He “must give public notice of the resignation as soon as it is possible to do so and in any event with twenty-four hours”. The default period is within 24 hours.
When does resignation take effect?
There is another constitutional provision that also deals with resignations from public office. It is section 341 of the Constitution. It states that “Any person who is appointed or elected to an office established by this Constitution may resign from that office by written notice addressed to the person that appointed or elected the office-holder concerned …” In the case of a Vice President, this provision merely restates what is already provided for in section 96(2). The only difference is that section 96(2) triggers a duty of the President to notify the public within 24 hours.
The more critical part of section 341 is paragraph 2 which deals with the question of when the resignation takes effect. It provides as follows:
“A person’s resignation from an office established by this Constitution takes effect on the date or at the time indicated in the notice of resignation or, if no date or time is indicated when the notice is received by the person to whom it is addressed or by anyone else who is authorized by that person to receive it.”
The key point here is that resignation takes effect on the date that is indicated in the resignation, but if there is no date, it takes effect on the day that it is received by the person to whom it is addressed. Therefore, in the present case, if VP Mohadi did not specify the date of resignation, it took effect when it was received by President Mnangagwa.
This disposes of Charamba’s argument that the resignation had to be accepted by the appointing authority before it became effective. Such a view is based on a misunderstanding of the law. There is no requirement for the President to accept a resignation. Both section 341(2) and section 96(2) are “touch is a move” type of provisions, meaning once the resignation letter is received, the resignation takes effect and the President must publicly announce before the expiry of 24 hours. The President’s duty to notify the public of the resignation is non-negotiable. It does not depend on his acceptance of the resignation. He does not even have discretion whether or not to issue the public notice.
Charamba’s statement dated 2 March 2021 was that VP Mohadi “handed in his resignation letter to the appointing authority … a week ago”, which means President Mnangagwa received it on or around 23 February 2021. President Mnangagwa was supposed to give public notice of the resignation as soon as possible after that and, in any event, within 24 hours. There is no record of the President giving public notice of VP Mohadi’s resignation. He is, therefore, arguably in breach of the Constitution that he is sworn to uphold and defend.
Is there an inconsistency?
It is true that in terms of section 2 of the Sixth Schedule where there is an inconsistency between provisions of the Sixth Schedule and the rest of the Constitutional provisions, the Sixth Schedule prevails. However, there has to be an inconsistency. There is no inconsistency between the provisions of the Sixth Schedule and section 96(2) or section 341(2). If anything, the provisions are complementary. The Sixth Schedule deals with how Vice Presidents are appointed while sections 96(2) and 341(2) deal with the procedure for their resignation, all of which is consistent with the rule of law.
Failure to uphold the Constitution is a serious offence. Section 90(1) of the Constitution provides that “The President must uphold, defend, obey and respect this Constitution as the supreme law of the nation and must ensure that this Constitution and all the other laws are faithfully observed.” He has failed in this regard. Wilful violation of the Constitution is one of the grounds for removing the President under section 97 of the Constitution. However, there is no reason to believe that the current Parliament will be moved to do anything over this breach. Yet it would be lethargic of the opposition and neglect of duty if they did not at least bring this breach to the attention of Parliament and place it on the record.
The irony is that in trying to correct what he thought was an erroneous media narrative of VP Mohadi’s resignation, Charamba exposed his boss’ blatant disregard of the Constitution. It’s a big gaffe unless of course it was deliberate and intended to embarrass Mnangagwa. “Let history record this statement of fact,” Charamba wrote. ZANU PF will ignore this criticism, but let history record this statement of breach of the Constitution by Mnangagwa. Acceptance of false narratives normalizes wrongful conduct, which is improper.