(Last Updated on September 7, 2015 by Editor)
ZIMBABWE – In this article, I argue that former Vice President Joice Mujuru should accept her constitutionally-guaranteed pension and allowances, in the interests of upholding the supreme law of the land and building a culture of constitutionalism.
She must look beyond her individual circumstances and instead, consider the bigger picture, and play her part in supporting an institution which, if properly nurtured, can serve the nation well in the future.
Rejecting the pension and benefits might make immediate political sense for her, earning her plaudits in the public gallery, but it does not make constitutional sense and the latter is a grave risk which must be prevented.
There are media reports already indicating that former Vice President Joice Mujuru has rejected the pension and terminal benefits offered to her by the State in the wake of her departure from office in December 2014.
If these media reports are correct, then while one can understand Mujuru’s frustration at the manner in which she has been treated by her former political colleagues, the decision to reject the pension and terminal benefits is unsound and regrettable.
Mujuru lost her job as VP in unceremonious circumstances at the end of last year when she was dismissed by President Mugabe. This came on the back of a hostile and bitter campaign led by Grace Mugabe, wife of the President, in the run-up to the ruling Zanu PF party congress in December 2014.
Mujuru was harassed and humiliated during that campaign, culminating in her dismissal as VP of both party and country. Later, in a final blow, she was also stripped of her party membership. Even after she has lost all this, attacks against her by former colleagues, especially Grace Mugabe, have been relentless.
However, nine months after her dismissal, the State gazetted a statutory instrument (SI 86 of 2015) on August 7 2015, announcing her pension and terminal benefits in terms of the Constitution. Under the Constitution, a former Vice President is entitled to a pension that is equivalent to the wage of a sitting Vice President and allowances and other benefits prescribed under legislation. The relevant provision, s. 102(3) states that,
“A person who has ceased to be President or Vice-President is entitled to receive—
(a) a pension equivalent to the salary of a sitting President or Vice-President, as the case may be; and
(b) such allowances and other benefits as may be prescribed under an Act of Parliament”.
Therefore, the pension and terminal benefits are constitutional entitlements, not a favour from the State or from Zanu PF, the ruling party.
First, however, there is a point of a technical nature that must be made. It is that the State may have erred in prescribing the allowances and benefits in a statutory instrument instead of an Act of Parliament and for this reason the Parliamentary Legal Committee may wish to scrutinise the constitutionality of SI 86/2015.
In terms of s. 102(3)(b), the allowances and other benefits are as prescribed in “an Act of Parliament” and not a statutory instrument as the State appears to have done in the current case. The new Constitution made a specific point of defining an Act of Parliament in s. 131 and specifying in s. 134 that primary law-making power could not be delegated.
In this regard, s. 131 (2) states that, “An Act of Parliament is a Bill which has been— (a) presented in and passed by both Houses of Parliament; and (b) assented to and signed by the President; in accordance with this Constitution”.
As we have seen, s. 102(3)(b) provides for allowances and benefits as may be provided in “an Act of Parliament”. To the extent that SI 86/2015 is NOT an Act of Parliament, there is a strong argument to be made that it is constitutionally invalid.
While it might be argued that power in an Act of Parliament may be delegated and that SI86?2015 was made under an existing Act of Parliament, it is important to note that there are safeguards which prevent the delegation of Parliament’s primary law making powers.
S. 134(a) makes it clear that “Parliament’s primary law-making power must not be delegated.” In this regard, the Constitution is very clear that allowances and benefits are provided for in an Act of Parliament, that is, in primary legislation – which means it must go through the full legislative process in both Houses of Parliament.
It can’t be left to a statutory instrument.
This is not an exercise in pedantry. Requiring the presidential allowances and benefits to be prescribed by an Act of Parliament is designed to ensure that this power is exercised collectively by and with parliamentary scrutiny, as opposed to leaving it to a delegated authority, such as the President or a Minister acting alone.
All this means there is an argument to be made that SI86/2015 is constitutionally invalid and it would be better and sounder if Mujuru’s objection were grounded on this constitutional irregularity.
Nevertheless, I do not for a number of reasons, agree with the rejection of the pension and terminal benefits, assuming this is true.
Firstly, this is a constitutional entitlement. The key clause making provision for the pension and benefits does not specify the circumstances under which one must have vacated offices in order to be eligible to receive them.
It simply says “a person who has ceased to be President or Vice President”. Therefore, whether she was fired, or she retired or resigned or was removed by some other process, the provision still applies. She is constitutionally entitled to the pension and benefits regardless of the circumstances of her departure.
Indeed, if the State withheld the pension and benefits, they would be in violation of the Constitution. In any event, providing such pension and benefits is consistent with international best practice.
Second, accepting the pension and benefits is consistent with upholding and defending the constitution, which deliberately creates a system to prevent abuse whereby politicians might be vindictive and would try to withhold pension and benefits from political opponents who might have served before them.
It would be possible, without this protection, that a future government might try to withhold the pension and benefits of their predecessors.
The respect for the offices of the President and the Vice President, which is internationally recognised practice, demands that their pension and benefits be constitutionally safeguarded and this is precisely what this provision does. Mujuru has no need to be apologetic about receiving her pension and benefits – this is what the constitutional provides for and if anything she has a duty to uphold and respect it.
Third, and related to the above, rejecting the pension and benefits has the potential of eroding an important constitutional institution which created by this clause to promote democracy and leadership change.
Guaranteeing a pension and benefits for former Presidents and Vice Presidents serves an important purpose in that it provides an incentive for incumbents to avoid clinging on to office since the pension and benefits guarantee financial security to departing leaders.
There is a view that leaders often cling on to office because of uncertain financial security in life after office. A constitutional provision which guarantees that they will receive the same wages and benefits as sitting Presidents or Vice Presidents, incumbents derive financial security which encourages them to leave office, knowing they will not be financially worse off.
For that reason, this is an institution which must not be politicised or subjected to the political gallery. Instead, we must inculcate a culture whereby departing Presidents and Vice Presidents take their dues upon leaving office.
If anything, the government has done well, albeit later than they should have done, to make provision for Mujuru’s pension and benefits. Mujuru might choose to use the pension and wages as she wishes but constitutionalism demands that she must take them.
Fourth, also linked to the above points, is that we must at all times separate the state from the ruling party. In this case, we must separate the State from Zanu PF. The pension and benefits due to the Vice President are due from the State and not from Zanu PF.
It is very easy in our fractured political environment for people to attribute anything that comes from the State to be coming from Zanu PF. This emanates from the fact that Zanu PF itself has worked hard over the years to substitute itself for the State and vice-versa.
But to criticise Zanu PF’s hijack of the State does not mean accepting that Zanu PF is the State or that the State is Zanu PF. This would be acquiescence to Zanu PF’s political tactics.
In fact, contrary to that view, people must be fighting hard to demonstrate a separation between Zanu PF and the State. Unfortunately, rejecting a constitutionally guaranteed pension and benefits falls into this trap, which portrays Zanu PF as the State and vice versa.
More preferable would be for a departing Vice President, in this case Mujuru, to accept her constitutionally guaranteed pension and benefits as provisions of the State and not gifts from Zanu PF because they are not the latter. People need to be educated that these are not Zanu PF gifts but entitlements from the State which are constitutionally guaranteed.
Those who support Mujuru’s rejection of the pension will argue that it is morally wrong for her to take them. But this is not a morality contest. This is a constitutional institution which serves a purpose wider than succession politics.
There is nothing immoral about a former President or Vice President receiving a pension and benefits from the State as long as they are reasonable. It is the practice in most civilised states around the world. If however, one feels that it is extravagant or does not wish to use it, the correct approach is not to reject a constitutional entitlement but to accept it and find other ways of using it.
Mujuru might as well donate her pension and allowances to charity – that would be better moral disposal of the resources while respecting an important constitutional institution. What must be avoided is cutting off the nose to spite the face, which is what rejection to make a political point leads to.
The other view is that accepting the pension and benefits would be tantamount to accepting gifts from Zanu PF and would also compromise any future ambitions to contest for the Presidency. This is backed by the view that Mujuru intends to run for the highest office in 2018. Supporters also argue that personnel provided by the State – for security, domestic work, etc, would be sent to spy on her.
These are strong arguments in an environment such as Zimbabwe, where political surveillance is an ever-present concern for political actors and such fears are understandable. Nevertheless, pension and benefits are diverse and there is no requirement that one must accept everything or lose all. I don’t see this fear as a reason to reject the whole package, including the pension.
Further, whether or not she has state-provided personnel, the fact of the matter is that Mujuru and her political colleagues will still be subjected to state surveillance anyway. It’s a no-win situation, really and one must always be on guard.
The MDC parties faced this problem during the GNU, as they could not reject security provided by the state but eventually their private and state security teams managed to find a working arrangement.
If it is true that Mujuru has rejected the pension and benefits, whereas all along she was trying to take a cautious approach not to reveal her political ambitions, then she may have prematurely given away her cards.
In other words, she may have played into Zanu PF hands who through this offer by the State, have forced her to declare her hand in this intriguing match of political poker. Until now, Mujuru has been a cautious, almost reluctant actor on the political scene, not declaring her intentions. This has left her opponents unsure of her moves.
However, now, the rejection suggests a refusal to be compromised by her old comrades. It suggests an intention to enter the political fray at some point and therefore to remain separated from her erstwhile party.
But if she had accepted her pension and benefits, she would still have kept them guessing for some time. Attacking her for receiving benefits would be cheap politics because these are constitutional entitlements. Non-one should criticise her for that – it comes with the office and it is a constitutional requirement.
In conclusion, while I understand the concerns that Mujuru might have over the pension and benefits, my opinion is that the principled decision, in defence of the constitution and inculcating a culture of constitutionalism, would be to uphold the constitution and accept what is constitutionally due to her. S. 103 of the Constitution says a former Vice President would forfeit the pension if he/she accepted public office or employment by anyone else.
Whether or not leading an opposition political party to contest for public office would qualify as “employment” remains a moot point but arguably it is not.
It would be a violation of one’s vested rights and the Bill of Rights to prevent them from exercising their political rights and other constitutional rights to take away their pension and benefits simply because they are contesting for public office. They would lose them only of they accepted public office or employment.
In any event, she would stand to gain better political mileage if they took away her pension and benefits simply because she would have exercised her political rights. But by rejecting the pension now, she wastes away this opportunity for moral leverage.
If she still hasn’t communicated her decision, I would argue that she must re-consider her position carefully before dismissing and rejecting what is constitutionally due to her. Rejection might score her some political points but at the expense of the broader objective of upholding and defending the constitution.