News / National
'Mnangagwa violates law'
06 Nov 2023 at 21:22hrs | Views
PROMINENT lawyer Beatrice Mtetwa has accused President Emmerson Mnangagwa of failling to "uphold, defend, obey and respect the constitution" after he failed to appoint a tribunal to look into the suitability of Justice Webster Chinamora to hold office as recommended by the Judicial Service Commission (JSC).
The JSC early this year recommended that Mnangagwa set up a tribunal to investigate the suitability of Chinamora and former Bulawayo High Court judge Martin Makonese to hold office.
Although Mnangagwa instituted a tribunal to investigate Makonese, leading to his resignation, he has inexplicably not acted on the recommendation to investigate Chinamora.
Section 187 sub-section 3 makes it mandatory for the President to appoint a tribunal once the JSC makes a recommendation.
In an open letter to Mnangagwa and the JSC, Mtetwa said the President had failed to uphold the constitution.
She said: "The Constitution of Zimbabwe has founding values and principles which include the rule of law, recognition of the equality of all human beings and good governance. To emphasize the Importance of good governance, its principles are specifically delineated and the delineation includes, ‘respect for the people of Zimbabwe from whom the authority to govern is derived'.
"Good governance also includes: "transparency, justice accountability and responsiveness".
"Sadly, the President has failed to abide by these principles in so far as his obligations under Section 187 (3) are concerned. Section 187 (3) provides as follows: ‘if the Judicial Service Commission advises the President that the question of removing any judge, including the Chief Justice, from office ought to be investigated, the President must appoint a tribunal to enquire into the matter". Subsection of section 187 in turn provides for the suspension of the concerned judge once the question of removing the judge has been referred to a tribunal for investigation'."
As revealed by The NewsHawks in previous articles, Mnangagwa does not want Chinamora removed from the bench as he sees him as a pro-establishment judge who has ruled in favour of the government in crucial matters.
Following the JSC's recommendations, there have been high-level moves involving senior Justice ministry officials to save Chinamora. Mtetwa however said Mnangagwa's manoeuevre was unconstitutional.
She also questioned why the Judicial Service Commission, Zimbabwe Human Rights Commission and Law Society of Zimbabwe were failing to act in the matter.
"Chinamora continues to sit as a High Court judge more than six months after his colleague had opted to resign. Legal practitioners whose clients are involved in the complaints against him are forced to appear before him in other matters," Mtetwa said.
". . . The public, which is entitled to justice dispensed by independent, impartial and fair judges who expeditiously act without ‘fear, favour or prejudice', continue to have their matters heard by a judge who has been adjudged to have a case to answer by a panel of three judges." Mtetwa said Mnangagwa had failed in his duties by failing to uphold the constitution. She also took a swipe at oversight institutions for ignoring the matter.
"Section 90(1) of the constitution requires the President to "uphold, defend, obey and respect" the constitution. And Section 324 of the constitution requires that, ‘all constitutional obligations be performed diligently and without delay', yet the President has, for a period of close to a year since referral, has been anything but expeditious and diligent in discharging an extremely important obligation which goes to the very root of the founding values and principles of Zimbabwe," Mtetwa said.
"Despite this blatant disregarded of an important constitutional obligation, Zimbabwe's oversight institutions and civil society organisations have remained mute. One of the functions of the JSC is to tender advice to the government ‘on any matter relating to the judiciary or the administration of Justice and the government must pay due regard to such advice'. Despite the constitution requiring the JSC to conduct its business in a just, fair and transparent manner, the people of Zimbabwe do not know whether or not the JSC has in fact discharged its Constitutional obligation of tendering advice to the President particularly with regards the need to diligently and expeditiously discharge constitutional obligations.
"Then there is the Zimbabwe Human Rights Commission whose various functions include ‘to protect the public against abuse of power and maladministration by the state and public institutions'. Has the ZHRC done anything to ensure that the JSC referral of the matter to the President is acted on diligently and expeditiously as is required by the Constitution? Is there any reason why it has not sought a mandamus to compel to the President to discharge his constitutional obligations or is the ZHRC as complicit in these failures as the JSC and the rest of us?"
Mtetwa said lawyers had also failed by failing to take up the matter through the Law Society of Zimbabwe.
"If the lawyers cannot decisively act to protect their own interests, why should the litigating public believe in their capacity to protect their interests? What sorts of professionals are these who are not protecting the integrity of their own institutions and processes? How does it feel to be the lawyer whose client made the complaints but who, a year later, still has to appear before the judge complained against? And can the public have confidence in our justice delivery system when there are such epic failures that no one is attending to? "And where are our civil society organisations when we need them?"
Mtetwa urged Chinamora to respect the oath of office he took.
"Where is your respect for the office of the High Court judge? Where is your respect for the office of the litigating public? Do you not crave public confidence and respect for the justice system that you serve? And when you receive all the emoluments that go with your office, do you feel that you have earned these in line with the principles that are supposed to guide you in dispensing justice?" asked Mtetwa.
The complaint against Chinamora was filed by Advocate Thabani Mpofu. A panel set up by the JSC to review the complaint comprising judges Anne-Marie Gowora, Alfas Chitakunye and Custom Kachambwa concluded that Chinamora has a case to answer.
Mpofu filed a complaint in a case in which another attorney, Advocate Taona Nyamakura, lodged a complaint against Chinamora for alleged conflict of interest in a legal dispute between Zimbabwe's Delta Beverages (Pvt) Ltd, Schweppes Zimbabwe Ltd and Blakey Plastics (Pty) Ltd, a South African company.
Chinamora was already facing a series of accusations ranging from conflict of interest, judicial misconduct, bribery to different forms of corruption.
The JSC early this year recommended that Mnangagwa set up a tribunal to investigate the suitability of Chinamora and former Bulawayo High Court judge Martin Makonese to hold office.
Although Mnangagwa instituted a tribunal to investigate Makonese, leading to his resignation, he has inexplicably not acted on the recommendation to investigate Chinamora.
Section 187 sub-section 3 makes it mandatory for the President to appoint a tribunal once the JSC makes a recommendation.
In an open letter to Mnangagwa and the JSC, Mtetwa said the President had failed to uphold the constitution.
She said: "The Constitution of Zimbabwe has founding values and principles which include the rule of law, recognition of the equality of all human beings and good governance. To emphasize the Importance of good governance, its principles are specifically delineated and the delineation includes, ‘respect for the people of Zimbabwe from whom the authority to govern is derived'.
"Good governance also includes: "transparency, justice accountability and responsiveness".
"Sadly, the President has failed to abide by these principles in so far as his obligations under Section 187 (3) are concerned. Section 187 (3) provides as follows: ‘if the Judicial Service Commission advises the President that the question of removing any judge, including the Chief Justice, from office ought to be investigated, the President must appoint a tribunal to enquire into the matter". Subsection of section 187 in turn provides for the suspension of the concerned judge once the question of removing the judge has been referred to a tribunal for investigation'."
As revealed by The NewsHawks in previous articles, Mnangagwa does not want Chinamora removed from the bench as he sees him as a pro-establishment judge who has ruled in favour of the government in crucial matters.
Following the JSC's recommendations, there have been high-level moves involving senior Justice ministry officials to save Chinamora. Mtetwa however said Mnangagwa's manoeuevre was unconstitutional.
She also questioned why the Judicial Service Commission, Zimbabwe Human Rights Commission and Law Society of Zimbabwe were failing to act in the matter.
". . . The public, which is entitled to justice dispensed by independent, impartial and fair judges who expeditiously act without ‘fear, favour or prejudice', continue to have their matters heard by a judge who has been adjudged to have a case to answer by a panel of three judges." Mtetwa said Mnangagwa had failed in his duties by failing to uphold the constitution. She also took a swipe at oversight institutions for ignoring the matter.
"Section 90(1) of the constitution requires the President to "uphold, defend, obey and respect" the constitution. And Section 324 of the constitution requires that, ‘all constitutional obligations be performed diligently and without delay', yet the President has, for a period of close to a year since referral, has been anything but expeditious and diligent in discharging an extremely important obligation which goes to the very root of the founding values and principles of Zimbabwe," Mtetwa said.
"Despite this blatant disregarded of an important constitutional obligation, Zimbabwe's oversight institutions and civil society organisations have remained mute. One of the functions of the JSC is to tender advice to the government ‘on any matter relating to the judiciary or the administration of Justice and the government must pay due regard to such advice'. Despite the constitution requiring the JSC to conduct its business in a just, fair and transparent manner, the people of Zimbabwe do not know whether or not the JSC has in fact discharged its Constitutional obligation of tendering advice to the President particularly with regards the need to diligently and expeditiously discharge constitutional obligations.
"Then there is the Zimbabwe Human Rights Commission whose various functions include ‘to protect the public against abuse of power and maladministration by the state and public institutions'. Has the ZHRC done anything to ensure that the JSC referral of the matter to the President is acted on diligently and expeditiously as is required by the Constitution? Is there any reason why it has not sought a mandamus to compel to the President to discharge his constitutional obligations or is the ZHRC as complicit in these failures as the JSC and the rest of us?"
Mtetwa said lawyers had also failed by failing to take up the matter through the Law Society of Zimbabwe.
"If the lawyers cannot decisively act to protect their own interests, why should the litigating public believe in their capacity to protect their interests? What sorts of professionals are these who are not protecting the integrity of their own institutions and processes? How does it feel to be the lawyer whose client made the complaints but who, a year later, still has to appear before the judge complained against? And can the public have confidence in our justice delivery system when there are such epic failures that no one is attending to? "And where are our civil society organisations when we need them?"
Mtetwa urged Chinamora to respect the oath of office he took.
"Where is your respect for the office of the High Court judge? Where is your respect for the office of the litigating public? Do you not crave public confidence and respect for the justice system that you serve? And when you receive all the emoluments that go with your office, do you feel that you have earned these in line with the principles that are supposed to guide you in dispensing justice?" asked Mtetwa.
The complaint against Chinamora was filed by Advocate Thabani Mpofu. A panel set up by the JSC to review the complaint comprising judges Anne-Marie Gowora, Alfas Chitakunye and Custom Kachambwa concluded that Chinamora has a case to answer.
Mpofu filed a complaint in a case in which another attorney, Advocate Taona Nyamakura, lodged a complaint against Chinamora for alleged conflict of interest in a legal dispute between Zimbabwe's Delta Beverages (Pvt) Ltd, Schweppes Zimbabwe Ltd and Blakey Plastics (Pty) Ltd, a South African company.
Chinamora was already facing a series of accusations ranging from conflict of interest, judicial misconduct, bribery to different forms of corruption.
Source - newshawks
