News / Local
Visually impaired prosecutor cries foul
29 Nov 2015 at 01:49hrs | Views
THE traditional symbol of justice is a blindfolded woman holding scales and a sword - she weighs right and wrong, punishes the guilty and is impartial.
Lady Justice, as the symbol is known, is not deaf because she listens to all the evidence put before her, hence the saying: "justice is blind but not deaf."
However, a clear call by the courts of the land that a visually impaired prosecutor must be allowed to present cases in court has allegedly fallen on the deaf ears of Prosecutor-General, Mr Johannes Tomana.
According to Mr Tomana, the visually impaired prosecutor "will not be able to see the credibility of witnesses".
This has raised the ire of court officials who claim his position is not in line with the Constitution of Zimbabwe which frowns upon discrimination of people on the grounds of disability. In addition Mr Tomana has ignored a court order compelling him to allow Mr Mehluli Ndlovu to prosecute criminal cases in court.
Mr Ndlovu's plight started in 2006 when he left private practice to join the then Public Service Commission as a prosecutor at Bulawayo Magistrates Court housed at Tredgold Building when Mr Tomana was still Attorney-General.
Since then, he has not been allowed to present cases in court with authorities arguing his assistant is not a civil servant and has not taken an oath to keep State secrets. For the past nine years, Mr Ndlovu has been confined to the Set Down offices where he receives new cases and decides whether there is enough evidence to prosecute.
Frustrated by his boss, Mr Tomana, Mr Ndlovu approached the Labour Court seeking an order to force the Prosecutor-General to allow him to prosecute in court.
Labour Court President Justice Mercy Moya-Matshanga ruled in his favour and ordered Mr Tomana to allow him to prosecute. The director of prosecution, Mr Tomana (in his capacity as Attorney-General at the time), the Public Service Commission and the Ministry of Justice and Legal Affairs were cited as first, second, third and fourth respondents.
"It is ordered that the first and second respondents (director of prosecution and Mr Tomana) through any of their subordinates and functionaries desist from subjecting Applicant to any restrictions in the performance of his duties but render Applicant with all necessary support and assistance to fully and effectively perform his duties without differentiation with his other colleagues in prosecution.
"That respondents be interdicted from any conduct, policy or implementation of programmes that have the effect of discriminating against Applicant or any of its employees who are visually impaired, or otherwise disabled. That the first and second respondents forthwith formalise the status of Applicant's assistant to enable him lawful access to court documents. The respondents are to pay costs on an attorney/client scale," ruled Justice Moyo-Matshanga on 5 September 2013.
However, two years have since lapsed without any adherence to the court order. The judge, in her ruling, said discrimination in any form is outlawed by the Labour Act. She said the law givers view the violation of this section so seriously that whoever breaches it shall be guilty of an offence and liable to a fine not exceeding level eight or to imprisonment for a period not exceeding two years or both such fine and such imprisonment as provided for in Section 5 (3) of the Labour Act.
Justice Moyo-Matshanga said Mr Ndlovu's chances of advancement within the ranks of his department have clearly been trodden upon as he should spend his entire working life as a prosecutor in the set down office.
In his founding affidavit submitted by his lawyer, Mr Costa Dube, Mr Ndlovu said Mr Tomana and officials in his office were discriminating against him because of his disability.
"I met the 1st respondent (director of prosecution) on the 14th of May 2006 at about 2.10 pm and she phoned the Attorney General (now PG) concerning this issue. About 10 minutes later she called me into her offices and told me that my request to prosecute in court could not be granted because I am visually impaired. She said I would not be able to see the demeanour of a witness in the courtroom therefore, I would be unable to decide if the witness or suspect was reliable.
"However, both the first and second respondent were misdirected on the issues as the question of reliability of witness is a matter of law and not one of sight. Further it is the duty of the court not the prosecutor to decide the credibility or otherwise of a witness' testimony. Their approach is discriminatory on the grounds of disability and therefore in flagrant violation of the Constitution of Zimbabwe," said Mr Ndlovu.
Mr Ndlovu holds a Bachelor of Law Honours Degree from the University of Zimbabwe which he was awarded in August 2004 and registered as legal practitioner with the Law Society of Zimbabwe in January 2005.
He has previously worked as a junior legal practitioner with two law firms, namely Dube and Partners as well as Advocate SKM Sibanda and Partners Legal Practitioners from 2004 to November 2005 before joining the civil service in October 2006.
Although the United Nations Convention of the rights of Persons with Disabilities recognises the right to work on an equal basis with others, too many persons with disabilities of working age do not have the opportunity to get a decent job.
sundaynews
Lady Justice, as the symbol is known, is not deaf because she listens to all the evidence put before her, hence the saying: "justice is blind but not deaf."
However, a clear call by the courts of the land that a visually impaired prosecutor must be allowed to present cases in court has allegedly fallen on the deaf ears of Prosecutor-General, Mr Johannes Tomana.
According to Mr Tomana, the visually impaired prosecutor "will not be able to see the credibility of witnesses".
This has raised the ire of court officials who claim his position is not in line with the Constitution of Zimbabwe which frowns upon discrimination of people on the grounds of disability. In addition Mr Tomana has ignored a court order compelling him to allow Mr Mehluli Ndlovu to prosecute criminal cases in court.
Mr Ndlovu's plight started in 2006 when he left private practice to join the then Public Service Commission as a prosecutor at Bulawayo Magistrates Court housed at Tredgold Building when Mr Tomana was still Attorney-General.
Since then, he has not been allowed to present cases in court with authorities arguing his assistant is not a civil servant and has not taken an oath to keep State secrets. For the past nine years, Mr Ndlovu has been confined to the Set Down offices where he receives new cases and decides whether there is enough evidence to prosecute.
Frustrated by his boss, Mr Tomana, Mr Ndlovu approached the Labour Court seeking an order to force the Prosecutor-General to allow him to prosecute in court.
Labour Court President Justice Mercy Moya-Matshanga ruled in his favour and ordered Mr Tomana to allow him to prosecute. The director of prosecution, Mr Tomana (in his capacity as Attorney-General at the time), the Public Service Commission and the Ministry of Justice and Legal Affairs were cited as first, second, third and fourth respondents.
"That respondents be interdicted from any conduct, policy or implementation of programmes that have the effect of discriminating against Applicant or any of its employees who are visually impaired, or otherwise disabled. That the first and second respondents forthwith formalise the status of Applicant's assistant to enable him lawful access to court documents. The respondents are to pay costs on an attorney/client scale," ruled Justice Moyo-Matshanga on 5 September 2013.
However, two years have since lapsed without any adherence to the court order. The judge, in her ruling, said discrimination in any form is outlawed by the Labour Act. She said the law givers view the violation of this section so seriously that whoever breaches it shall be guilty of an offence and liable to a fine not exceeding level eight or to imprisonment for a period not exceeding two years or both such fine and such imprisonment as provided for in Section 5 (3) of the Labour Act.
Justice Moyo-Matshanga said Mr Ndlovu's chances of advancement within the ranks of his department have clearly been trodden upon as he should spend his entire working life as a prosecutor in the set down office.
In his founding affidavit submitted by his lawyer, Mr Costa Dube, Mr Ndlovu said Mr Tomana and officials in his office were discriminating against him because of his disability.
"I met the 1st respondent (director of prosecution) on the 14th of May 2006 at about 2.10 pm and she phoned the Attorney General (now PG) concerning this issue. About 10 minutes later she called me into her offices and told me that my request to prosecute in court could not be granted because I am visually impaired. She said I would not be able to see the demeanour of a witness in the courtroom therefore, I would be unable to decide if the witness or suspect was reliable.
"However, both the first and second respondent were misdirected on the issues as the question of reliability of witness is a matter of law and not one of sight. Further it is the duty of the court not the prosecutor to decide the credibility or otherwise of a witness' testimony. Their approach is discriminatory on the grounds of disability and therefore in flagrant violation of the Constitution of Zimbabwe," said Mr Ndlovu.
Mr Ndlovu holds a Bachelor of Law Honours Degree from the University of Zimbabwe which he was awarded in August 2004 and registered as legal practitioner with the Law Society of Zimbabwe in January 2005.
He has previously worked as a junior legal practitioner with two law firms, namely Dube and Partners as well as Advocate SKM Sibanda and Partners Legal Practitioners from 2004 to November 2005 before joining the civil service in October 2006.
Although the United Nations Convention of the rights of Persons with Disabilities recognises the right to work on an equal basis with others, too many persons with disabilities of working age do not have the opportunity to get a decent job.
sundaynews
Source - Sunday News
