VP resignation debate: Madhuku got it wrong

LOVEMORE Madhuku has written a legal opinion concerning the applicability of section 96(2) of the Constitution to the resignation of a Vice-President. It was in part a reply to an opinion I had offered last week on the same subject. This followed the resignation of Vice-President Kembo Mohadi after scandalous revelations by a news website.

Madhuku disagreed with my opinion and he offered to present what he called a “scholarly” opinion on the matter. He delivered his opinion, and it is fair and in the public interest that I respond to it.

It is from these legal debates that ideas and opinions are shaped. In this response, I argue that, with respect, Madhuku’s opinion contains deep faults and cannot possibly survive scrutiny.

In particular, I challenge the validity of his approach to the problem whereby he invokes amorphous notions like the “inner legal eye” and the “by necessary implication test”.

One of the things that are conspicuous in Madhuku’s opinion, which he had touted as scholarly, is a paucity of legal authorities to back up his arguments.

Legal authorities can be statutes, as in this case, the Constitution. They can be case law, often referred to as precedent. They can also be authoritative texts.

While Madhuku declared several items in authoritative language, there is a conspicuous absence of legal authorities to back them up. They include the following:

The distinction between express and implied constitutional provisions and whether implied terms can override express terms

The “inner legal eye”

The test for creating implied terms which we might conveniently refer to as the “by necessary implication” test.

These are key tools that he uses in his opinion, but he offers no legal authority to justify them, a point that will become apparent in the discussion of the so-called “inner legal eye”.

A reviewer of an article or a judge would demand authorities.

The ordinary eye might be mesmerised by these terms, but a professional would ask for authorities because that is how legal argument works. You do not just make up things without supporting authorities and present them as analytical tools.

Madhuku argued that a distinction must be made between what he calls express and implied constitutional provisions.

He makes a case for the inclusion of implied terms, but does not address the basic rule of interpretation, which is to interpret the ordinary meaning of words that are expressly used.

Before one engages in the exercise of looking for things that are not in the statute, they must interpret and give meaning to the stated words.

This much is plain, it requires no repetition. I argue that the Constitution has a clear mechanism for dealing with things that Madhuku has invented in his test.

A danger in the hands of authoritarian rulers

The approach favoured by Madhuku, which appears to privilege implied terms over express terms flies against one of the most fundamental principles of the Constitution: that it can only be amended by Parliament and in any event, it must be done per strict procedure which is entirely different from the procedure for ordinary Bills.

A key limb to that principle is that any changes to the Constitution must be in “express terms”. The authority for this is section 328(2) of the Constitution which states: “An Act of Parliament that amends this Constitution must do so in express terms”

This means any changes to the Constitution can only be done by Parliament and not any other person and when it does so, it must be in express terms.

Even Parliament, which has the supreme powers of amending the Constitution cannot do it in implied ways.

The act of reading implied terms into the Constitution has the same effect as amending the Constitution. It would be an informal process of amendment because it will be done by a person or body other than Parliament.

It is dangerous because it places the written Constitution at risk. Authoritarian rulers could simply read implied terms into the Constitution even where the terms are clear and unambiguous.

The invocation of such power is tantamount to usurping the role of Parliament and subverting section 328 of the Constitution.

The framers of the Constitution were aware that there may be certain powers that are not directly stated but which can be implied where necessary.

This explains the existence of section 342(3) which states that “Where a power, jurisdiction or right is conferred by this Constitution, any other powers or rights that are reasonably necessary or incidental to its exercise are impliedly conferred as well.”

These implied powers are not independent. They flow from existing powers and must, therefore, be exercised within limits. They are not a licence to invent new powers where express provisions already exist.

Fallacy of the “inner legal eye”

The method presented by Madhuku by which these implied terms are identified is highly problematic, not least because he offers no legal authority. First, he stated that it requires an “inner legal eye”.

This has no authority to back it up, so it is not clear whether it is a product of his imagination or it is derived from another source.

But more importantly, it lacks clarity to be of use in legal analysis. What does it mean? Who possesses this “inner legal eye”?

His argument seems to be that only “constitutional experts” have this “inner legal eye”. But is there one “inner legal eye”? Assuming it exists, what if there is more than one “inner legal eye”? This very debate shows the logical fallacy of one “inner legal eye”. What guarantee is there that the “inner legal eye” is not partially sighted?

There is an admission of this possibility of more than one “inner legal eye” in paragraph 9 of his opinion, but he offers no helpful view as to how that multiplicity of “inner legal eyes” might be resolved.

For a legal tool to have any utility, it must have coherence and clarity. Otherwise, it leads to more confusion. As American judge, Justice Cardozo once wrote: “Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.”

The “inner legal eye” is problematic, both as a claim to superior thinking and as a tool of analysis.

It is no more than a fancy name for the opinions of those who claim superior knowledge of the Constitution than others.

The trouble is there can be as many “inner legal eyes” as they are people who claim such expertise.

Judges have in the past invented legal tools to resolve complex problems.

They have the authority to do so and if they are superior courts their legal tests are relevant and binding.

The “neighbour principle” in the law of torts/delict is a famous example.

It was invented by judges to resolve the question of liability in personal injury cases.

Mrs Donoghue had consumed contaminated ginger beer at a cafe. She discovered after she had started drinking it that it had a decomposed snail.

She claimed damages and the court found that the café owner owed her a duty of care. In that case, the House of Lords established the “neighbour test” to establish the presence of a duty of care.

To this day, courts rely on this case as the legal authority to determine whether there is a duty of care in personal injury cases.

Madhuku declares the existence of the “inner legal eye” as some tool to distinguish between express and implied terms but without any legal authority to support it or the clarity to be of use as an analytical tool.

Until it is adopted by the superior courts as a legal principle, it is merely an opinion, one of many.

As I argue below, it is not even necessary because the Constitution has a mechanism for resolving the issues raised in this situation.

● Alex T Magaisa is a prominent Zimbabwean lawyer and constitutional expert currently teaching law at the University of Kent Law School in England. He once served as advisor of the then Prime Minister of Zimbabwe Morgan Tsvangirai from 20122013. He writes here in his personal capacity.