PRESIDENT Emmerson Mnangagwa is violating his constitutional obligation by failing to establish a tribunal to investigate the suitability of Justice Webster Chinamora of the Harare High Court to continue holding office following allegations of misconduct.
This comes after a recommendation from the Judicial Service Commission (JSC).
Section 187 sub-section 3 makes it mandatory for the president to appoint a tribunal once the JSC makes a recommendation.
However, following the JSC’s recommendations, there have been high-level moves involving senior Justice ministry officials to save Chinamora, who is seen as a pro-government judge.
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.
In terms of section 187 of the constitution, a judge can only be removed from office for inability to perform the functions of his or her office, due to mental or physical incapacity; gross incompetence or gross misconduct. A judge can only be removed from office in terms of the section.
Sub-section 3, which Mnangagwa is violating, stipulates: “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 inquire into the matter.”
Sub-section 4 reads: “A tribunal appointed under this section must consist of at least three members appointed by the President, of whom — (a) at least one must be a person who — (i) has served as a judge of the Supreme Court or High Court in Zimbabwe; or (ii) holds or has held office as a judge of a court with unlimited jurisdiction in civil or criminal matters in a country whose common law is Roman-Dutch or English, and English is an officially recognised language.”
The JSC early this year recommended that Mnangagwa sets up tribunals to investigate the suitability of Chinamora and former Bulawayo High Court judge Martin Makonese’s suitability to hold office. 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.
Mnangagwa last month appointed a three-person tribunal chaired by retired Justice Professor Simbi Veke Mubako and consisting of Dr Gift Manyatera and Ms Sarah Moyo to inquire into the question of removal from office of Makonese but did not appoint a tribunal to investigate Chinamora.
Makonese resigned immediately after members of the tribunal were sworn.
The tribunal, in accordance with the constitution, must report its findings to the President and recommend whether or not the judge should be removed from office.
Chinamora is seen as pro-government, hence some officials feel he should be rescued from the tribunal at all costs.
He has made what are seen as pro-government rulings, the latest being the one contradicting a landmark ruling by Justice Jacob Mafusire, who determined that Statutory Instrument (SI) 70 of 2015 and other legislation used by the Reserve Bank of Zimbabwe with support from the ministry of Finance was unconstitutional.
Mafusire ordered the Central Africa Building Society (Cabs) to pay US$142 000 to local architects Penelope Douglas Stone and Richard Harold Stuart Beattie after their money was converted into local currency following the passing of SI 70 of 2015.
Cabs was also ordered to pay interest at the rate of 5% per annum from 28 November 2016 — when the money was converted — to the date of payment.
The ruling has far-reaching implications for many individuals, organisations and companies whose money was converted into bond notes or RTGS because of SI 70 of 2015 and other predatory legislation.
However, hardly a fortnight after the ruling, Chinamora made a surprise ruling which contradicted Mafusire’s findings, leaving a local pensioner, Duncan Hugh Cocksedge, counting his losses after his US$179 000 bank balance domiciled in a Cabs account was wiped out after being wholly converted to local currency through the government’s controversial Exchange Control Directive RT120/2018.
Duncan had approached the High Court seeking redress, but his application was thrown out by Chinamora.
Chinamora’s ruling was a stark departure from that of Mafusire who had determined that some sections relied on by Cabs were in breach of the national constitution and contractual obligations between the applicant and the first respondent.
Justice Chinamora averred that it was not for the courts to change “political questions”.
The judge also said the regulation of banking activities to achieve economic stability and protect the banking public were the prerogative of the executive.