High Court reserve ruling on Harare Mayor application against Kasukuwere

HIGH Court Judge Justice Mary-Zimba Dube on Tuesday reserved ruling after presiding over the hearing of an urgent chamber application filed by Harare Mayor Bernard Manyenyeni seeking an order setting aside his suspension by Local Government, Public Works and National Housing Minister Saviour Kasukuwere.

Zimbabwe Lawyers for Human Rights stated that Justice Dube reserved ruling after hearing arguments from lawyers representing Minister Kasukuwere, who opposed the urgent chamber application and those representing Councillor Manyenyeni namely David Hofisi and Dzimbabwe Chimbga of Zimbabwe Lawyers for Human Rights (ZLHR), who faulted the Local Government, Public Works and National Housing Minister for breaching the country's governance charter by meddling in the management of the local authority.

Minister Kasukuwere on 20 April 2016 suspended Councillor Manyenyeni from serving as Mayor of Harare and councillor and justified that he had done so in terms of Section 114 (1) (d) (ii) of the Urban Councils Act [Chapter 29:15]. In suspending Manyenyeni, Minister Kasukuwere indicated that the Harare Mayor and some City of Harare Councillors had acted unlawfully and defied his directive ordering them not to approve the appointment of seasoned banker James Mushore to the position of Town Clerk for the City of Harare.

This prompted Manyenyeni to engage his lawyers from ZLHR to file an urgent chamber application on Thursday 21 April 2016 challenging Minister Kasukuwere's decision as unlawful and unconstitutional on the basis that he has no such powers in terms of the Constitution and as has been previously held by the High Court in the cases of Hamutendi Kombayi and Ten Others vs Minister of Local Government, Public Works and National Housing and Hamutendi Kombayi and Ten Others vs Minister of Local Government, Public Works and National Housing.

In court, Hofisi and Chimbga argued that in terms of the Constitution, the removal of Mayors, Councillors and Chairpersons is done by an independent tribunal in terms of an Act of Parliament and there is neither that Act of Parliament nor an Independent Tribunal hence Minister Kasukuwere has thus arrogated to himself powers he no longer has to suspend Councillor Manyenyeni in violation of the Constitution.

The power to remove a Mayor, Chairperson or Councillor, Hofisi and Chimbga argued is no longer vested in a Minister but in an Independent Tribunal set up in terms of an Act of Parliament and thus there is no way that Minister Kasukuwere can purport to suspend or remove Manyenyeni from office.

Minister Kasukuwere's authority to do so, the human rights lawyers argued, can only emanate from an Act of Parliament which provides for the establishment of an Independent Tribunal pursuant to the provisions of the current Constitution of which that Act of Parliament is yet to be promulgated.

Therefore Minister Kasukuwere's hands are tied and he should seek legislative intervention to get a lawful basis to set up the Independent Tribunal contemplated by the Constitution, argued Hofisi and Chimbga.

Councillor Manyenyeni, Hofisi and Chimbga argued, is suffering harm and prejudice as he has been suspended from office without lawful cause. Apart from his suspension from office, Minister Kasukuwere also suspended payment of his allowances and is not permitted to conduct any council business.

The human rights lawyers asked Justice Dube to order Minister Kasukuwere to refrain from suspending, dismissing or engaging in any other activity with a view to removing Councillor Manyenyeni from the office of Mayor of Harare.