News / National
Lawyers speak on Bulawayo Deputy Mayor conviction
15 Sep 2018 at 09:18hrs | Views
NEWLY-elected Bulawayo Deputy Mayor Councillor, Tinashe Kambarami, who was two months ago convicted of theft, can only be fired through a court order, legal experts have said.
Mr Kambarami was elected Councillor for Ward Three in the July 30 harmonised elections after trouncing former Bulawayo mayor, Mr Martin Moyo in the party's primaries.
Last week, he was elected deputy mayor after beating his closest rival Clr Mlandu Ncube of Ward One. According to court records, Kambarami (32) was in July under CRB 1981/18, convicted on his own plea of guilty to theft by Bulawayo magistrate, Ms Sharon Rosemani.
He was fined $80 or 18 days in prison for stealing an extension cord from an electrician he had hired to do manual work at his offices. He had been given up to the end of July to pay the fine, but defaulted resulting in a warrant of arrest being issued against him.
Kambarami then paid the fine on August 15. Lawyers said although Kambarami was convicted, he remains a councillor as long as no one has approached the courts to challenge his election. Constitutional lawyer, Professor Lovemore Madhuku, said legally Kambarami can only removed from office through a court order.
"Legally once one is declared duly elected it is not automatic that they leave office unless there is a court order to nullify that. We are therefore saying someone will have to go to court, be it a voter or some interested party. In essence, it means that Kambarami remains a councillor and deputy mayor until a competent court has declared him unfit to remain in office," he said.
According to section 119 (2) (e) of the Electoral Act, a person shall be disqualified from being nominated as a candidate for or from election as a councillor if he or she has been convicted of an offence involving dishonesty.
The section 41 (7) of the Urban Councils Act states that a councillor who is convicted of an offence and sentenced to imprisonment for a period of six months or more shall forthwith cease to exercise his or her functions or to be entitled to any remuneration as a councillor, and subject to subsection (8), he or she shall cease to be councillor at the expiry of 30 days from the date of such sentence.
Section 41 (8) reads: "If, during the 30 day period referred to in subsection (7), the councillor concerned applies for a free pardon or notes an appeal against conviction and additionally, or alternatively, the sentence, the question whether he or she is to continue in office as a councillor shall not be determined until the abandonment or final disposal of the application or appeal, whereupon he or she shall forthwith cease to be a councillor unless (a) he or she is granted a free pardon (b) his or her conviction set aside or (c) his or her sentence is reduced to a term of imprisonment of less than six months or (d) a punishment other than imprisonment is substituted."
Bulawayo lawyer and Law Society of Zimbabwe councillor Mr Godfrey Nyoni said: "If Kambarami was indeed convicted, of which I doubt he disclosed his conviction to the Nomination Court, his election should be a nullity and anyone can approach the High Court to seek a declaratur to say his election was not in terms of the law. You cannot sanitise an illegality and if something is a nullity it's a nullity and it ends there."
Efforts to contact MDC spokesperson Mr Jacob Mafume were fruitless as his mobile phone was not reachable. On August 1 last year, Kambarami offered Mr Washington Chirikuudzi (68) some manual work at his business offices.
Kambarami then asked the complainant to leave his tools at his offices inside a safe before knocking off. When the complainant returned on the following morning, he discovered that his extension cord was missing. When he inquired about the whereabouts of his electrical cable, Kambarami admitted that he took it and promised to return it. However, Kambarami did not return the cable despite pleas from the complainant.
Mr Chirikuudzi got fed up with Kambarami's excuses and reported the matter to the police leading to the deputy Mayor's arrest. The extension cord measuring 30 metres was not recovered.
Mr Kambarami was elected Councillor for Ward Three in the July 30 harmonised elections after trouncing former Bulawayo mayor, Mr Martin Moyo in the party's primaries.
Last week, he was elected deputy mayor after beating his closest rival Clr Mlandu Ncube of Ward One. According to court records, Kambarami (32) was in July under CRB 1981/18, convicted on his own plea of guilty to theft by Bulawayo magistrate, Ms Sharon Rosemani.
He was fined $80 or 18 days in prison for stealing an extension cord from an electrician he had hired to do manual work at his offices. He had been given up to the end of July to pay the fine, but defaulted resulting in a warrant of arrest being issued against him.
Kambarami then paid the fine on August 15. Lawyers said although Kambarami was convicted, he remains a councillor as long as no one has approached the courts to challenge his election. Constitutional lawyer, Professor Lovemore Madhuku, said legally Kambarami can only removed from office through a court order.
"Legally once one is declared duly elected it is not automatic that they leave office unless there is a court order to nullify that. We are therefore saying someone will have to go to court, be it a voter or some interested party. In essence, it means that Kambarami remains a councillor and deputy mayor until a competent court has declared him unfit to remain in office," he said.
The section 41 (7) of the Urban Councils Act states that a councillor who is convicted of an offence and sentenced to imprisonment for a period of six months or more shall forthwith cease to exercise his or her functions or to be entitled to any remuneration as a councillor, and subject to subsection (8), he or she shall cease to be councillor at the expiry of 30 days from the date of such sentence.
Section 41 (8) reads: "If, during the 30 day period referred to in subsection (7), the councillor concerned applies for a free pardon or notes an appeal against conviction and additionally, or alternatively, the sentence, the question whether he or she is to continue in office as a councillor shall not be determined until the abandonment or final disposal of the application or appeal, whereupon he or she shall forthwith cease to be a councillor unless (a) he or she is granted a free pardon (b) his or her conviction set aside or (c) his or her sentence is reduced to a term of imprisonment of less than six months or (d) a punishment other than imprisonment is substituted."
Bulawayo lawyer and Law Society of Zimbabwe councillor Mr Godfrey Nyoni said: "If Kambarami was indeed convicted, of which I doubt he disclosed his conviction to the Nomination Court, his election should be a nullity and anyone can approach the High Court to seek a declaratur to say his election was not in terms of the law. You cannot sanitise an illegality and if something is a nullity it's a nullity and it ends there."
Efforts to contact MDC spokesperson Mr Jacob Mafume were fruitless as his mobile phone was not reachable. On August 1 last year, Kambarami offered Mr Washington Chirikuudzi (68) some manual work at his business offices.
Kambarami then asked the complainant to leave his tools at his offices inside a safe before knocking off. When the complainant returned on the following morning, he discovered that his extension cord was missing. When he inquired about the whereabouts of his electrical cable, Kambarami admitted that he took it and promised to return it. However, Kambarami did not return the cable despite pleas from the complainant.
Mr Chirikuudzi got fed up with Kambarami's excuses and reported the matter to the police leading to the deputy Mayor's arrest. The extension cord measuring 30 metres was not recovered.
Source - chronicle
