BY ALEX T MAGAISA 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 wh