EXECUTIVE

This is the most powerful organ of the state whatever constitutional law says. There are two
types of governmental models. There is the Parliamentary model and the Presidential model. The
Parliamentary model has the following features,

a. There is a separate head of state and head of government.

b. Head of the government is not directly elected; he is the leader of the majority party.
c. Government is composed from members of the legislature - Ministers are drawn from
Parliament.
d. The executive is responsible to Parliament and the government must resign if defeated on
a vote of no confidence in Parliament.

The Prime Minister has enormous power over the legislature in that he may recommend
dissolution at any time.

On the other hand the Presidential system has the following features,

a. The President is directly elected.

b. The offices of head of state and head of government are combined.
c. The President is not responsible to Parliament and cannot be removed simply on a vote of
no confidence.
d. The President can’t dissolve the legislature.
e. The President has veto powers and these may be overridden by a two-thirds majority of
the legislature.

Some countries have an amalgamation of these two systems. The Zimbabwean system has a
monster which exhibits more Presidential characteristics but still utilizing features of the
parliamentary system consistent with the desire to concentrate power in the President. The
driving desire in the American system is to strike a balance between an effective leadership and
the need for checks and balances.

In Zimbabwe the President is directly elected. He/she is not a Member of Parliament. Before
2008 he was elected in a separate election. He had a 6 year term while Parliament had 5 years.
All his ministers must be members of Parliament. There is provision for a minister to serve for 3
months without being an MP. Parliament cannot remove the President on a vote of no
confidence. However, Parliament may pass a vote of no confidence in the government. In that
case the President may resign if he so wishes but the vote of no confidence means he may
dismiss all his ministers or dissolve Parliament instead (Section 31F). He has general powers to
dissolve Parliament at any time (Section 63(2)). However after 2008 dissolution of Parliament
will lead to fresh elections in which the office of the President will also be up for election. The
President has extensive veto powers over bills. When a bill is presented to the President he/she
shall either assent or withhold assent within 21 days. If the President withholds his assent the bill
is returned to the house of assembly which can only return the bill to the President with a two-
thirds majority of all its members. If the house of assembly succeeds in getting a two-thirds
majority the President is still not obliged to assent the bill – he shall assent or dissolve
Parliament.

EXECUTIVE FUNCTIONS OF THE PRESIDENT

These are provided for in terms of Section 31H of the constitution. The President may exercise
executive authority either directly or indirectly through the cabinet, a Vice-President, a minister
or deputy minister. This is because the constitution vests executive authority in the President.
There are circumstances that the constitution obliges the President to exercise executive authority
directly. Where the constitution grants powers to the President alone any delegation of such
power is invalid. (See President of the Republic of South Africa v. South Africa Rugby
Union 200 (1) SA 1)

However it is not an abdication of power if the President acts upon the advice of advisers or
members of the cabinet as long as he exercises the powers himself and makes the final decisions.

Benjamin Paradza v. Dennis Kamocha Chirwa SC 25-05

The Applicant was a judge of the High Court. On the advice of the Chief Justice the President
had appointed a Tribunal in terms of Section 87(3) of the constitution. The Tribunal consisted
of 3 members, all of whom were judges of the Supreme Court of their respective countries. To
facilitate their appointment to the tribunal, the Minister of Justice had written letters to
commissioners of the relevant countries asking them to approach their Ministers of Justice to
request their Chief Justices to nominate a judge of their court to be a member of the Tribunal.
This was done and names came from Zambia, Tanzania and Malawi. The 3 persons were
subsequently appointed by the President. The Applicant contended that the members of the
Tribunal had to have been elected by the President as required by the constitution. He argued
that this was an unlawful delegation of the President’s power to the Chief Justices of the 3
countries. In a 4-1 ruling (Sandura JA dissenting) the Supreme Court rejected the applicant’s
contention and held that what mattered was whether the President exercised the ultimate
decision.

The majority is correct – the President is only required to apply his mind to the selection.

The courts have recognized what they call the need to preserve the dignity and status of the
office of the President by ensuring that it is not harassed by frivolous and vexatious proceedings
(See President of the Republic of South Africa v. South Africa Rugby Union 2000 (1) SA 1,
Zimbabwe Lawyers for Human Rights & Anor v. President of the Republic of Zimbabwe
2000 (1) ZLR 274). In the South African case it was said that an understanding of the
implications of the President’s busy schedule must be sensitively and carefully considered. The
constitution provides immunity to the person holding the office of the President (Section 30 of
the constitution). The President’s power of control over the government mainly stems from his
power to hire and fire members of the cabinet. The cabinet must be established in terms of
Section 31D of the constitution. The President decides on the size of the cabinet. Ministers hold
office at his pleasure. He decides whether there should be one or two Vice-Presidents. Under
Section 31K the courts are prohibited from enquiring into the factors that influenced the
President’s decision. Section 31 has been misunderstood by the Supreme Court in Zimbabwe
Lawyers for Human Rights & Legal Resources Foundation v. President of the Republic of
Zimbabwe SC12-03 where Cheda JA refused to have anything to do with what the Applicants
were seeking, purportedly on the basis that Section31K. The Applicants wanted the President to
make public certain reports, namely, the Dumbutchena Report of 1982 and the Chihambakwe
Report of 1984. Cheda JA said that any disclosure would have infringed Section 31K. It was
submitted that Section 31K was irrelevant. For Section 31K to apply there must be a decision of
the President that is being challenged. In this case what was being challenged was the President’s
refusal to make public reports, no issue of advice, recommendation or consultation arose.
However the decision on the appropriate principles would still have upheld the President’s
position. According to PF ZAPU v. Minister of Justice 1985 (2) ZLR 313 there are certain
prerogatives exercisable by the President that are beyond the jurisdiction of the courts. These are
very few e.g. his choice of a minister, a policy decision to make secret certain issues. Outside
this narrow group of prerogatives exercise of power by the President is subject to judicial review
(See PF ZAPU v. Minister of Justice supra). In that case Dumbutchena CJ classified the
exercise of power by the President into two categories, namely

1. Prerogatives which are not subject to review – very few

2. Prerogatives which are subject to judicial review on the usual grounds

It is a matter of interpretation of the constitution to determine the prerogative.

The Supreme Court has held that if the incumbent President is re-elected ministers do not
automatically lose their seats (See Quenial v. Minister of Lands). In that case the issue was the
meaning of new President. In terms of the constitution a minister vacates office on a new
President (Section 31G). In that case, the court said Mugabe was not a new President. Sandura
JA held that he was new.

CABINET COLLECTIVE RESPONSIBILITY

Cabinet ministers act in unison to the outside world and carry joint responsibility in Parliament.
Ministers who disagree with particular decisions have two options, either resign or support the
decision. A façade of unanimity must be maintained.

MINISTERIAL RESPONSIBILITY
A minister is both responsible for his personal acts and for the general conduct of his department.
The impartiality and anonymity of civil servants must be preserved. A minister must answer for
civil servants in Parliament and may resign and may resign for maladministration by his
officials.

OTHER ORGANS OF THE EXECUTIVE

The Public Service, army, police, Attorney General, etc.

THE INCLUSIVE GOVERNMENT

Amendment 19 changed the structure of the executive by putting in place a temporary

arrangement which has validity only for the period of the inclusive government. In terms of
Section 115 the constitution of Zimbabwe shall be amended to reflect the structure of
government in schedule 8. How long is the period? It is said that it is as long as the inter-
political agreement is subsistent. The agreement does not specify its termination date but it is
clear that it cannot go beyond 5 years... The provisions of schedule 8 prevail notwithstanding
anything to the contrary in the constitution. If schedule 8 says nothing about a constitutional
provision then that provision remains valid. It is only the executive authority which is affected.
The new provisions create the office of the Prime Minister and a new organ called the council of
ministers. The following are the major changes,

1. Executive authority vests and shall be shared among the President, the Prime Minister
and cabinet as provided for in this constitution.

2. The role of the cabinet is outlined specifically – it evaluates and adopts all government
policies.

3. The President chairs cabinet.

4. The council of ministers is chaired by the Prime Minister and consists of all cabinet
members except the Vice-Presidents and President.

5. In the exercise of executive authority the President is required to consult the Prime
Minister. The President does not consult the Prime Minister in every matter. The matters
over which he consults are specified in Section 115 where the distinction is made
between “after consultations” and “in consultation”. After consultation means that the
President is not bound while in consultation means that there has to be an agreement.

It is the President who acts and makes decisions. There is no provision for the Prime Minister to
act and make decisions. The Prime Minister acts by advising the President’s core decision
making where his agreement is required. Regarding the issue of head of government the
provisions of the GPA skillfully avoid reference to the terms head of state and head of
government. The provisions simply list the functions of the President and those of the Prime
Minister. Section 27 of the constitution is not changed. For one to tell that the President is head
of state reference must be made to Section 27. Further, President Mugabe took oath on 29 June
2008 before amendment 19 – he took oath as head of state and head of government. There was
no new appointment of the President after the GPA.