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Unpacking the Kambarami -Town Clerk suspension saga

12 Jul 2019 at 15:45hrs | Views
The wait is over.

Yesterday (11 July 2019) I promised to give my opinion on the "alleged suspension pending disciplinary investigation" of the Bulawayo Town Clerk Mr. Christopher Dube by the Deputy Mayor Mr. Tinashe Kambarami, currently in an Acting capacity as the Mayor Mr. Solomon Mguni is away on study leave. This is it.

On 11 July 2019, TinasheKambarami acting as mayor invoked, purportedly Section 139(3) (a) of the Urban Councils' Act suspended the Town Clerk Mr. Christopher Dube from his position as the Town Clerk of the City of Bulawayo pending disciplinary action on three grounds namely on the water crisis, misappropriation of ward retention funds under the Ward Retention Fund, abuse of office and failure to implement council resolutions. The said grounds are not only arguable but tenuous.

Social and mainstream media is awash with factual, political, legal, tribal and other commentary on the move taken by the Acting Mayor. My attitude, as is the norm is to briefly comment on key political and legal issues attendant to the decision taken by the Acting Mayor and his side kicks. First things first, this is a political blunder because the City of Bulawayo is facing one of its worst and crippling water shortages which the City of Bulawayo has ever battled with and has tried to administratively explain indicating that the water infrastructure needed rehabilitation. ZANU (PF) may have a field day sooner than later than the MDC Councillor has lost its marbles and is failing to deal with the City of Bulawayo issues. The July Moyo administration which opposed a rather obvious issue of having a King for the Mthwakazi people may have a field day on this one, an obvious free kick.

The communiqué attended to the administrative explanation for the crippling water shortages involved the City Councillors and the Administration including the Town Clerk. The Mayor's position is captured in an article penned by Nduduzo Tshuma of the Chronicle newspaper. Effectively this a collective decision from the City Fathers and their administration. Accordingly the issue of the water crisis has been explained.

Politically, what begs an explanation if that while the Mayor of the City of Bulawayo His Worship Solomon Mguni is away on leave, the Acting Mayor MrTinashe Kambarami has assumed Executive powers (if not usurped) to invoke Section 139 (3)(a) of the Urban Councils Act. The manner of the assumption of the usurpation is thuggish and smacks of political overtones instead of administrative justice as is supposed to be the case in terms of the urban Councils Act, Administrative Justice Act, and Constitution of Zimbabwe. Factually, the Mayor of Bulawayo His Worship Solomon Mguni has distanced himself from the forcible evict ion of the Town Clerk from his office (both physically and legally). This is politically smart. It is also legally appropriate and informed. No citizen including an Acting Mayor can take the law into his own hands. It's an easy case for a peace order or expoliation. There is no need to look at the merits of the case whether the Town Clerk is right or wrong. An act of expoliation or right to vindicate against unlawful eviction is not indicative of the merits but stems factly from the issue of unlawful action. There is no need to be legalistic of this issue. Put in other words, whether Kambarami and cohorts have rights or not they cannot take the law into their own hands without a court order whether there is a section 129 or not.

The Town Clerk has a legal right to seek a court order to have access to his office because the process of vacating the office was not a lawful process and the thuggish behavior by the Acting Mayor and his cohorts was not only thuggish but clearly unlawful. This is not to say that the Town Clerk is not guilty of any transgressions, but due process is part of the game. He has rights. He must be lawfully suspended (vacated from his office). Not the Khiya – Khiya thuggish behavior exhibited by the Acting Mayor who has evidently thrown out due process and resorted to self-help. This is not obviously a banana republic. This is the City of Kings and Queens. SIMPLE!

Politically speaking, I repeat it is un-strategic to be fighting the Town Clerk in light of prevailing issues bedeviling the City of Bulawayo. The matter has taken a tribal twist in that, the cabal of the Councillors baying for the Town Clerk's ouster are predominantly Shona (by orientation/origin). Secondarily, the thrust of the argument appears not to be results oriented in that instead of working with the town clerk to solve the water crisis, the City Fathers are hell-bent on deepening the crisis and inevitably inviting the Central government led by the unpredictable Minister July Moyo to set up a Commission to run the City of Bulawayo and or suspend certain Councillors. Talk of shooting oneself on the foot! The profession of ignorance and innocence by his Worship the Mayor Mr. Solomon Mguni, is informative in that he has distanced himself from the TinasheKambarami and cabal initiative to get rid of the Town Clerk. His attitude is available online and I don't need to repeat that. This is what is called political Pondaring. Ukumotsha.Political Mamparas.

Legal speakingSection 139 of the Urban Councils Act is very clear that, I quote
139 (3) If it appears to the Mayor or Chairman, as the case may be that the Town Clerk of the council has been guilty of such conduct, that is desirable that the Town Clerk should not be permitted to carry on his work, he –
a)    May suspend the Town Clerk from office and require him forthwith to leave his place of work; and ….

The invocating of Section 139 presupposes two legal facts, firstly that it is the Mayor (the emphasis is mine) who should do this. It's factual and legal that the Mayor of the City of Bulawayo is none other than His Worship Mr Solomon Mguni. The purported suspension was done by one Mr.Tinashe Kambarami an Acting Mayor who clearly is not a Mayor in terms of the Urban Councils' Act. Unequivocally the Act states that it is the Mayor who has the powers to suspend the Town Clerk not the Acting Mayor. The usurpation of the powers is not only unlawful, arbitrary, capricious, ridiculous, ill-advised, silly but ultra – vires the Urban Councils' Act Chapter 29:15. This explains why if one watches the online video of the verbal exchange between the said Tinashe Kambarami and the Town Clerk Mr. Christopher Dube, there are a lot of unprintable obscenities that make for a good time watch and listening to. We can do better than this as a people.

Further, legally speaking upon appointment or election as a Councillor, the political jacket ceases to exist and all councilors including the Mayor and the Deputy Mayor by extension have a duty to act in an administrative, fiduciary, collective and responsible manner for the city of Bulawayo (amongst other cities) , meaning the councilors have to respect, not only the urban Councils Act, but the citizens, the law and the Constitution of the land and in that regard there reposes upon them a duty, responsibility and expectations for the residents to expect rational decisions concerning city affairs. For a whole acting Mayor to go hand in toe with a camera man and call for back up from fellow councilors to evict the Town Clerk without a court order is not only irresponsible but unlawful, and totally unacceptable in a democratic society. The city of Bulawayo deserves better.

For the record it is unnecessary or it was for the Town Clerk to be threatening death to the Deputy Mayor, for the obviously unlawful acts that the Acting Mayor was committing together with his evil cabal. Why was it seen as POLITICALLY expedient to override a full council meeting to deal with (possibly) expedient administrative issues by having the Deputy Mayor take the law into his own hands without a full council resolution – and evidently without the knowledge and blessing of the Mayor His Worship Cllr Solomon Mguni to suspend the Town Clerk.

I have no energy to be dealing with the looming and previous issues relating to the Acting Mayor which have a bearing on the decisions being taken by him relating to the Town Clerk, but what I can comment in passing is that the City of Bulawayo deserves better, and time will deal with him, the Town Clerk, the resident and the Central government which has just been given a penalty to deal with the City of Bulawayo either through setting up a commission or suspending the transgressing councilors, whose conduct is clearly becoming unbecoming.

I had digressed, back to the main issue. Section 139 is very clear and straight forward and that it says "if it appears to the Mayor…" Factually and legally Tinashe Kambarami is not the Mayor of the City of Bulawayo. It is Cllr Solomon Mguni who is the Mayor of the City of Bulawayo and his decision is clear that he is not party to the decision to suspend the Town Clerk. Cllr Tinashe Kambarami is only an Actor and his acting has dismally failed. Effectively his decision is void ab initio (a nullity from the beginning). Further, a close reading of Section 139 of the Urban Councils Act shows that it must be desirable that the Town Clerk be suspended to carry on his work. The reasons given for the suspension of the Town Clerk don't evince such desirability. The unilateral nature for the purported suspension is not only suspect but criminal. This posture is supported by the obvious composition of the cabal that went against the Town Clerk head on toe effectively torpedoing the council meeting that was meant to deal with the administrative issues.

Legally and politically, the Kambarami – MDC blunder in dealing with the suspension of the Town Clerk is a big mess and the big lash attendant to it is warranted and well deserved. I foresee the Town Clerk getting a provisional order blocking his suspension. The obvious political backlash is obvious via Twitter, Facebook and other online platforms, needs no expounding on. I maintain that in terms of the Urban Councils Act Mr. Tinashe Kambarami is offside and chickens are about to come home to roost and it's time to buy more popcorns. I rest my case.

By Sindiso S Mazibisa
President Southern Stars Foundation and;
Director Centre for Legal Research and Advocacy
Cell: +263 774 457 429

Source - Sindiso Mazibisa
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