Tuesday, May 28, 2019

First Lady's hand visible in the governance of the country

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In the last few weeks, the First Lady Auxillia Mnangagwa has been very visible in the governance of the country, leading many to conclude that we are witnessing another Grace Mugabe at work. When Zanu PF kicked out the former First Lady and removed the former President Robert Mugabe from his party position, part of the argument was that Mugabe had allowed his wife to run affairs of the State in his place, thus alluding to an abdication of power.

Interestingly, the current First Lady is moving in the same direction albeit at a faster pace. I was quite amused with a visit by the First Lady to NatPharm, the country's chief supplier of drugs to public hospitals. NatPharm was created through the Government Medical Stores (Commercialisation) Act of 2000 and took over functions of the former Government Medical Stores.

The board of directors is appointed by the Minister of Health. It is by all standards therefore, under the control of the State. The First Lady, however, went on a tour of one of its warehouses and proceeded to demand supply lists because she believed that NatPharm was holding onto supplies without disbursing these to hospitals. Sounds like a noble initiative, right? Yes, it is but there is one problem with this — the First Lady has no legal standing to interfere with the operations of NatPharm nor can she demand to see the company's distribution lists.

The company falls under the oversight of the Ministry of Health and not the First Lady. The unfortunate reality remains that the First Lady, like you and I, is an ordinary citizen. The only difference is that she is the wife of the President. That in itself does not create a public office nor does it create a legal basis to interfere with the running of the State.

The First Lady also issued veiled threats to the telecommunications sector, castigating the recent tariff hikes. Again, this is a noble thing however, this is not something that falls within her purview. She can engage them as any citizen would but nothing further.

This kind of interference presents a challenge by creating undue influence over the mobile operators. Potraz remains the appropriate regulatory body to engage the mobile operators and proper process must be followed to prevent usurping of the regulatory authority's power.

There are many other instances where the first lady is increasingly becoming involved in the governmental space, but the question one must pose is whether this is permissible in terms of our country's laws. I know some may even go as far as arguing that if it benefits the people then there should be no problem at all but as a nation of laws, we need to always determine the legality of actions taken.

The legal nature of the 'Office of the First Lady'

There has been some discussion about the role of the First Lady and whether her activities can be justified as having arisen from her "office". Well, to start with, the country's laws do not recognise the Office of the First Lady. The office is therefore not a legal creation, but a socially-engineered one. In theory, there should be no public funds channelled to her or her "office" because she is not a recognised public functionary or office holder.

A better way to describe her "office" is that it is nothing more than a ceremonial one with no formal recognition.

If one was to take it further, "First Lady" is a title without an office, at least, in the Zimbabwean context. Her influence is no different from that of celebrities who are catapulted to fame and the public limelight but without being elected to do so. The First Lady does not carry out any public functions, nor does she have a legal entitlement to use taxpayers' money directly unlike public officials. I am not suggesting that she is using public funds, but I am just pointing out a consequence of her not holding public office.

Any benefits accruing to the First Lady are incidental in that they exist because of who she is married to. Put differently, it is because of the President's Office that she enjoys some of the benefits she has such as security aides, among others.

Consequently, should her spouse be removed from office, she is not entitled to anything directly.

Readers will recall that at the height of the factionalism in Zanu PF, the former First Lady claimed that the President exercised his power jointly with her and that she was more important than the Vice-Presidents.

It must be noted that in terms of public power, the First Lady ranks lower than ministers, deputy ministers, MPs and other public officials because she simply does not possess any public power.

The First Lady must stay clear from purporting to be a public official and allow her spouse and other public officials to discharge their constitutional functions without attempting to usurp them or sneak herself into government when she clearly does not form part of it.

In administrative and constitutional law, the concept of usurping powers simply means that the wrong person has exercised powers not intended to be exercised by them, thereby depriving the legitimate functionary of the powers given to them.

Functionaries who allow their powers to be usurped by wrong functionaries can and often are held liable for this in most jurisdictions. An important consequence of usurping powers is that the decision taken by the wrong functionary is invalidated by the courts and will have no legal and binding effect. Zimbabwe takes it one step further through s174 of the Criminal Law Act (The Code). Section 174 pens the offence as criminal abuse of duty as a public officer. The crime is defined as follows:

(1) If a public officer, in the exercise of his or her functions as such, intentionally

(a) does anything that is contrary to or inconsistent with his or her duty as a public officer; or

(b) omits to do anything which it is his or her duty as a public officer to do;

for the purpose of showing favour or disfavour to any person, he or she shall be guilty of criminal abuse of duty as a public officer and liable to a fine not exceeding level thirteen or imprisonment for a period not exceeding fifteen years or both.

The High Court in S v Taranhike & 5 Others, held that to be guilty of abuse of public office:

- One must be a public officer;

- Must have engaged in conduct that is inconsistent with their duty as public officer;

- Must act intentionally in the act of omission or commission and that

- The purpose of the conduct must be to show favour or disfavour to any one person

In terms of the Code, public officers include Ministers, Deputy Ministers, Vice-Presidents, members of council, boards, committees or other authority which are statutory bodies or local authorities or which are responsible for administering the affairs or business of a statutory body or local authorities or persons holding or acting in a paid office in the service of the State, a statutory body or a local authority. Individuals in the above categories who allow the First Lady to exercise powers on their behalf, as is the case with the NatPharm matter, find themselves dangerously close to committing the crime of public abuse of office.

Matters that are entrusted to public officials must simply be exercised by those individuals and the First Lady must by all means, stay away from the governance of the country. There is nothing wrong with her assuming the traditional philanthropic 'mother-figure role' of the nation provided the funds are not derived from the State, at least not unlawfully anyways. She can be the face behind charitable causes- there's no harm there but that's where it should end. Interfering in government employees' strikes or drug distribution to hospitals is overstepping and undermines the relevant functionaries.

Lastly and perhaps more importantly, if the President's powers are seen to be shared with his wife then he faces a more serious consequence as a result of such interference. Section 97 of the Constitution allows for the removal of a sitting President for serious misconduct; failure to obey, uphold or defend the Constitution or wilful violation of this Constitution. Abdicating Executive power to an unelected official certainly ticks all those boxes even though only one needs be established. As others have rightfully noted, the continued interference by the First Lady can make a great case for removal of the President (the impeachment process). While the President publicly advised the First Lady and wives of the Vice-Presidents not to get involved in the governance of the State, it remains to be seen if he will walk the talk in this regard or suffer the same fate that his predecessor did …just saying!

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Paul Kaseke is a legal advisor, commentator, policy analyst and former law lecturer with the Wits Law School & Pearson Institute of Higher Education (formerly Midrand Graduate Institute). He serves as senior managing partner and current group chair of AfriConsult firm. He writes in his personal capacity.