News / National
Mugabe dragged to the High Court
03 Nov 2017 at 02:31hrs | Views
The Zimbabwe Lawyers for Human Rights (ZLHR) has dragged President Robert Mugabe to the High Court, challenging his decision to fire Prosecutor General (PG) Ray Goba (pictured).
In the court application for a declaratory order and consequential relief, ZLHR cited Mugabe, the Judicial Service Commission (JSC) and Goba as respondents.
According to an affidavit by Roselyn Hanzi, ZLHR's executive director, Goba's dismissal was not in line with the country's Constitution, thus making it unconstitutional.
"This is an application challenging the legal validity of the government Gazette Extraordinary Notice No. 642 of 2017 published on the 27th October, 2017…The said Gazette General Notice purports to invalidate the appointment of the third respondent (Goba) to the office of the Prosecutor General.
"I contend that the purported reversal of third respondent's appointment through a Government Gazette General Notice is unlawful, ultra vires provisions of the Constitution in addition to being in breach of provisions of the Administrative Justice Act, (Chapter 10:28) and of the common law right to be heard before having your civil rights adversely interfered with," Hanzi said.
ZLHR is now seeking an order declaring as invalid and of no legal force and effect the government Gazette purporting to repeal Goba's appointment.
"For the avoidance of doubt, the applicant (ZLHR) also seeks an order directing the 1st respondent (Mugabe) to administer the prescribed oath of office on the third respondent failing which the oath of office taken by the third respondent on the 7th of July, 2016 as acting Prosecutor-General, be confirmed as being sufficient for the appointment of the third respondent to the substantive position of Prosecutor General.
"That the first and second respondents (Mugabe and JSC) be and are hereby interdicted from removing or in any other way interfering with the third respondent's constitutional appointment without following the removal from office procedures provided for in Section 259 (7) of the Constitution of Zimbabwe," Hanzi said.
She said in terms of the country's Constitution, there is no provision for the removal of a duly appointed PG through the repeal of the Gazette that announced his appointment.
ZLHR said save for removal through after the expiry of the two six-year terms, through resignation, death or other natural causes, a PG can only lawfully be removed from office through following the provisions of Section 259 (7) as read with Section 187 of the Constitution.
"In so far as the appointment is concerned, the President immediately became functus officio after the publication of General Notice 493/2017. He cannot revisit his decision even if it turns out to him, that the candidate chosen by him may well not be suitable for such a post. If he deems that the candidate is unsuitable for any reason, including the reason of error or mistake in the appointment, then the president must constitute a tribunal as is required by law or at the very least approach the courts," argued ZLHR.
"He cannot, given the seriousness and importance of the position, achieve this by simply retracting his notice informing the people of Zimbabwe of the appointment of the Prosecutor-General. To allow such a procedure would not only violate the Constitution but would also leave other similarly appointed officials open to removal on a whim and without following the removal procedures provided for in the Constitution," the court heard.
She also said that there is no provision in the Constitution that allows Mugabe to change his decision after appointment and is not bestowed with such powers.
She further said that the matter is urgent because the JSC was already seized with the possibility of instituting a fresh process to replace Goba.
Mugabe, JSC and Goba had not yet responded to the application filed on Wednesday.
Mugabe rescinded the confirmation of Goba last week, less than two months into his job.
His appointment came after he had participated in public interviews conducted by the JSC in August to select a substantive PG following the dismissal of Johannes Tomana.
The JSC had shortlisted eight candidates, of which Goba was leading the pack after excelling in those interviews.
The other shortlisted candidates included Wilson Manase and Misheck Hogwe.
On September 13, the chief secretary to the President and Cabinet Misheck Sibanda announced the appointment of Goba through a Government Gazette.
But before he could be sworn in, Sibanda announced in an extraordinary gazette on Friday last week that Goba's appointment had been reversed by Mugabe.
The notice effectively revoked the previous general notice that brought Goba into office.
Goba, who once served as Namibia's deputy PG, was in 2002 convicted of drunk driving in Namibia and failing to obey a road traffic sign as well as attempting to defeat or obstruct the course of justice.
The conviction forced the Namibian government to deny him a work and residence permit in 2011.
Goba challenged the ministry's decision in court but lost.
He appeared to be back on track after he was part of eight candidates interviewed in public by the JSC on August 21 for appointment as Zimbabwe's second PG.
During the public interviews, Goba was grilled over his conviction.
He did not deny the conviction, which he described as unfortunate, claiming the matter was irrationally dealt with, leading to the conviction.
Chief Justice Luke Malaba, who was among the panel of interviewers, suggested Goba seemed to treat the offence lightly.
Last Friday, Goba hinted that he was considering taking legal action.
JSC secretary Rita Makarau told the Daily News on Monday that the commission will now seat to deliberate on whether to start the interview process from scratch or shortlist applicants that had already been interviewed, before forwarding their names to Mugabe for consideration.
The JSC's mandate is that of appointing, assigning, promoting, supervising, fixing conditions of service to members in the Judicial Service and exercising disciplinary powers to them.
It is also responsible for the well-being and good administration of the judicial service and its maintenance in a high state of efficiency.
The JSC also deals with complaints or grievances by or against members.
In terms of the supreme law of the land, whenever a vacancy arises at the PG level, members of the public are invited to nominate suitably qualified persons to fill the position.
The JSC will then interview the aspiring candidates, shortlist the top performing ones and submit the list to the president for consideration.
In the court application for a declaratory order and consequential relief, ZLHR cited Mugabe, the Judicial Service Commission (JSC) and Goba as respondents.
According to an affidavit by Roselyn Hanzi, ZLHR's executive director, Goba's dismissal was not in line with the country's Constitution, thus making it unconstitutional.
"This is an application challenging the legal validity of the government Gazette Extraordinary Notice No. 642 of 2017 published on the 27th October, 2017…The said Gazette General Notice purports to invalidate the appointment of the third respondent (Goba) to the office of the Prosecutor General.
"I contend that the purported reversal of third respondent's appointment through a Government Gazette General Notice is unlawful, ultra vires provisions of the Constitution in addition to being in breach of provisions of the Administrative Justice Act, (Chapter 10:28) and of the common law right to be heard before having your civil rights adversely interfered with," Hanzi said.
ZLHR is now seeking an order declaring as invalid and of no legal force and effect the government Gazette purporting to repeal Goba's appointment.
"For the avoidance of doubt, the applicant (ZLHR) also seeks an order directing the 1st respondent (Mugabe) to administer the prescribed oath of office on the third respondent failing which the oath of office taken by the third respondent on the 7th of July, 2016 as acting Prosecutor-General, be confirmed as being sufficient for the appointment of the third respondent to the substantive position of Prosecutor General.
"That the first and second respondents (Mugabe and JSC) be and are hereby interdicted from removing or in any other way interfering with the third respondent's constitutional appointment without following the removal from office procedures provided for in Section 259 (7) of the Constitution of Zimbabwe," Hanzi said.
She said in terms of the country's Constitution, there is no provision for the removal of a duly appointed PG through the repeal of the Gazette that announced his appointment.
ZLHR said save for removal through after the expiry of the two six-year terms, through resignation, death or other natural causes, a PG can only lawfully be removed from office through following the provisions of Section 259 (7) as read with Section 187 of the Constitution.
"In so far as the appointment is concerned, the President immediately became functus officio after the publication of General Notice 493/2017. He cannot revisit his decision even if it turns out to him, that the candidate chosen by him may well not be suitable for such a post. If he deems that the candidate is unsuitable for any reason, including the reason of error or mistake in the appointment, then the president must constitute a tribunal as is required by law or at the very least approach the courts," argued ZLHR.
"He cannot, given the seriousness and importance of the position, achieve this by simply retracting his notice informing the people of Zimbabwe of the appointment of the Prosecutor-General. To allow such a procedure would not only violate the Constitution but would also leave other similarly appointed officials open to removal on a whim and without following the removal procedures provided for in the Constitution," the court heard.
She also said that there is no provision in the Constitution that allows Mugabe to change his decision after appointment and is not bestowed with such powers.
She further said that the matter is urgent because the JSC was already seized with the possibility of instituting a fresh process to replace Goba.
Mugabe, JSC and Goba had not yet responded to the application filed on Wednesday.
Mugabe rescinded the confirmation of Goba last week, less than two months into his job.
His appointment came after he had participated in public interviews conducted by the JSC in August to select a substantive PG following the dismissal of Johannes Tomana.
The JSC had shortlisted eight candidates, of which Goba was leading the pack after excelling in those interviews.
The other shortlisted candidates included Wilson Manase and Misheck Hogwe.
On September 13, the chief secretary to the President and Cabinet Misheck Sibanda announced the appointment of Goba through a Government Gazette.
But before he could be sworn in, Sibanda announced in an extraordinary gazette on Friday last week that Goba's appointment had been reversed by Mugabe.
The notice effectively revoked the previous general notice that brought Goba into office.
Goba, who once served as Namibia's deputy PG, was in 2002 convicted of drunk driving in Namibia and failing to obey a road traffic sign as well as attempting to defeat or obstruct the course of justice.
The conviction forced the Namibian government to deny him a work and residence permit in 2011.
Goba challenged the ministry's decision in court but lost.
He appeared to be back on track after he was part of eight candidates interviewed in public by the JSC on August 21 for appointment as Zimbabwe's second PG.
During the public interviews, Goba was grilled over his conviction.
He did not deny the conviction, which he described as unfortunate, claiming the matter was irrationally dealt with, leading to the conviction.
Chief Justice Luke Malaba, who was among the panel of interviewers, suggested Goba seemed to treat the offence lightly.
Last Friday, Goba hinted that he was considering taking legal action.
JSC secretary Rita Makarau told the Daily News on Monday that the commission will now seat to deliberate on whether to start the interview process from scratch or shortlist applicants that had already been interviewed, before forwarding their names to Mugabe for consideration.
The JSC's mandate is that of appointing, assigning, promoting, supervising, fixing conditions of service to members in the Judicial Service and exercising disciplinary powers to them.
It is also responsible for the well-being and good administration of the judicial service and its maintenance in a high state of efficiency.
The JSC also deals with complaints or grievances by or against members.
In terms of the supreme law of the land, whenever a vacancy arises at the PG level, members of the public are invited to nominate suitably qualified persons to fill the position.
The JSC will then interview the aspiring candidates, shortlist the top performing ones and submit the list to the president for consideration.
Source - Daily News
