Judge Makonese resignation saves Mnangagwa from embarrassment

AFTER President Emmerson Mnangagwa appointed a tribunal last week which he swore in this week to inquire into the question of removal from office of High Court Justice Martin Makonese following allegations of misconduct against him, the judge resigned, inadvertently saving the President the embarrassment.

Mnangagwa appointed a three-person tribunal chaired by retired Justice Professor Simbi Veke Mubako. Other members of the tribunal were Dr Gift Manyatera and Ms Sarah Moyo with Justice secretary Virginia Mabhiza being the the secretary of the tribunal.

It however emerged that Manyatera had a close working relationship with Makonese between 2005 and 2006 when they worked as lawyers, making him a conflicted member of the panel.

Officials in the judicial sector say Manyatera would not have been able to act independently given his close relationship with Makonese.

The situation had left Mnangagwa's tribunal compromised and open to possible judicial challenge by lawyers and civil society groups. The Law Society of Zimbabwe was scrutinising the panel, ready to join the fray.

Makonese was set to be the latest to face tribunals after Justices Thompson Mabhikwa, Erica Ndewere, Francis Bere and Edith Mushore, who were all fired for misconduct over the last three years.

The complaint against Makonese followed an order he issued in a commercial dispute in which he allegedly had a financial interest.

He made the order without an application made before him, and without the knowledge of lawyers of the two other parties in the dispute.

Makonese handled a dispute over a coal mine in Hwange pitting a company called Philcool Investments, which was the "applicant", and two other companies, Hwange Coal Gasification and Taiyuan Sanxing, which were the "respondents" during the hearing purportedly held on 12 October 2022.

He allegedly granted the companies relief they had not sought - including ordering them to abandon pending court applications, which suppliers to use and structuring payment terms to resolve the dispute. Allegations are that no such hearing took place.

Representatives of Philcool Investments tried to enforce the order, but failed.

Mnangagwa, through Statutory Instrument 54 of 2023, established the tribunal in terms of section 187(1) of the constitution of Zimbabwe which provides that a judge may be removed from office only for inability to perform the functions of his or her office, due to mental or physical incapacity; gross incompetence; or gross misconduct. Section 187(3) of the constitution provides that, "if the Judicial Service Commission advises the President that the question of removing a judge from office ought to be investigated, the President must appoint a tribunal to inquire into the matter".

The tribunal was meant to conduct its work over a five-month period and produce a report at the conclusion of its inquiry.

Mnangagwa had directed that the tribunal's terms of reference be: "to inquire into the matter of the removal from office of Honourable Justice Martin Makonese; to investigate Honourable Justice Makonese's conduct as alleged in the dossier from the Judicial Service Commission, whether it can be deemed to have been tantamount to
gross misconduct and gross incompetence and to investigate whether the Honourable Justice Makonese interfered with the course of justice during the course of his duties."

The tribunal was meant to investigate whether Makonese presided over matters wherein he had a direct conflict of interest.

The tribunal was expected: "to consider all information submitted by the Judicial Service Commission in order to arrive at an appropriate recommendation to the President; to investigate any other matter which the Tribunal may deem appropriate and relevant to the inquiry; to recommend on whether the Honourable Judge, is fit to hold office in light of the foregoing and to report to the President, in writing, the result of the inquiry within a period of five (5) months from the date of swearing in of the Members," Mnangagwa directed.