Ziyambi appeal against enacting ministers' misconduct Bill upheld

The Supreme Court has upheld an appeal by the justice minister and the attorney general who were both challenging a High Court order directing them to draft a code of conduct Bill for senior government officials.

Last year, the High Court ordered Ziyambi Ziyambi and AG Prince Machaya to craft a code of conduct for vice presidents and ministers.

But a three-panel bench chaired by Justice Elizabeth Gwaunza Tuesday ruled in favour of Ziyambi and Machaya after finding that there was no a law that compels them to do that.

According to court, full reasons for the ruling will be availed in due course.

Harare lawyer Nyasha Chiramba had dragged Ziyambi and Machaya to court demanding the enactment of a law seeking to govern the conduct of vice presidents and cabinet ministers.

This was after state vice president Kembo Mohadi was in 2021 forced into an ignominious resignation from the top job after being mired in a sex scandal involving married women.

Ziyambi and Gwaunza were given 45 days starting June 8, 2022, to draft the Bill but they ignored the order prompting the suit for contempt of court.

They later lodged an appeal through the Supreme Court.

In submitting his application, Chiramba had relied on section 106 (3) of the Constitution which requires the regulation of the conduct of vice presidents, ministers and deputy ministers.

Chiramba submitted that the senior officials were involved in different types of misdemeanors including sexual misconduct and abuse of State resources, hence any errant behaviour by the holders of the country's lofty offices should be kept in check.

High Court judge David Mangota ruled in his favour and ordered the minister and AG to submit to cabinet for consideration, the Bill envisaged by section 106 (3) of the constitution of Zimbabwe.

He directed the two to submit to cabinet this Bill by August 17, 2022.

Representing Ziyambi and Machaya in their Supreme Court appeal, Harare lawyer Olivia Zvedi had argued the two had no authority to make such decisions.

"The law-making organ within the legislative process is the Cabinet. My view is that the President, Vice President and Ministers fall under the Office of President.

"These principles would need to emanate from the office. Even the minister of Justice needs to be given his code of conduct.

"It would be improper to say the Minister of Justice should come up with a code of conduct. He also needs to have his code governed," she said.

Zvedi said, "The functions of the AG are not to initiate legislation. Section 114 (4) of the Constitution which outlines the functions of the AG says it is the role of the AG to act as a principle legal advisor of the government.

"We submit that such a role has not been assigned to the AG in any Act of Parliament.

"We therefore do not accept the argument that it is the role of the Minister of Justice and AG to come up with the legislation in question.

"If the court finds that the judgement of the court a quo has no fault, the AG's offices are not adequately staffed and 45 days would not suffice to come up with the legislation. Maybe six months would be enough."

In response, Wilbert Mandinde who was representing the applicant, Nyasha Chiramba said the justice ministry was the one currently seized with constitutional affairs.

"The removal of the responsibility does not remove some of the responsibility of the Ministry.

"It still has the office of constitutional affairs under it.

"Constitutional implementation still resides with the Ministry of Justice. My learned colleague has not given another ministry which could be in charge of constitutional implementation," he said.

In upholding Ziyambi and Gwaunza's appeal, Supreme Court judge Gwaunza said, "The appeal be and is hereby allowed with costs. The judgement of the lower court is hereby set aside on its entirety…"