Mnangagwa protects judge facing a series of corruption scandals . . .

SOMETIME in February The NewsHawks reported that the Judicial Service Commission (JSC) had recommended that President Emmerson Mnangagwa must set up tribunals to investigate High Court Justices Webster Chinamora and Martin Makonese’s suitability to continue holding office against a backdrop of venality or corruption scandals.

OWEN GAGARE

The subset to the story — which was the real revelation or story behind the story – was that Mnangagwa was going to appoint a tribunal to investigate Makonese, but not Chinamora.

In short, that the President would throw Makonese under bus but protect Chinamora. Well-informed sources at the time had told The NewsHawks in January that authorities were going to do everything in their power to protect Chinamora, but let Makonese suffer consequences of his actions when the JSC sets the ball rolling.

This week one of the sources came back to The NewsHawks — more than 10 months later — and said: “That issue has come to pass as we told you way back in January. Mnangagwa, as we indicated at the beginning of the year, was going to appoint a tribunal to investigate Makonese’s suitability to hold office in line with the JSC recommendation. Of course, Makonese resigned to save himself and his handlers embarrassment before the tribunal could start its investigation. But we also said at the time Mnangagwa was ironically not going to appoint a tribunal to do the same on Chinamora. Up to now, there has been no action or tribunal for Chinamora. Everything has gone according to their script.

“This is a scandal on top of a scandal. The real scandal on Chinamora’s corruption scandals is Mnangagwa’s neglecting, refusal, or both, to uphold his constitutional obligation and responsibility to appoint a tribunal as required by the constitution to investigate the judge.

“It is scandalous not only because it suggests he is protecting the judge, who is accused of corruption, but also that in the process he is willing to risk his high office, position and reputation to do so. What Mnangagwa is doing is an impeachable offence. The question is why is he taking that risk?”

 This sub-plot became a running thread in all our stories on the issue throughout the year. Now it has come to pass that Chinamora would be protected. Mnangagwa is studiously resisting appointing a tribunal to probe him, in violation of the constitution and the law.

This has raised eyebrows, although the original reason given was that Chinamora would be saved because he is a pro-government judge thus of major utility to the President and the executive in an environment where the judiciary is key to the survival of those in power as shown by the Chief Justice Luke Malaba saga, which The NewsHawks also broke exclusively.

“There is more to the Chinamora case than meets the eye,” the source said.

“It’s a high stakes game. Removing Chinamora may open a Pandora’s box. We will explain that in detail soon. For now, the only way Mnangagwa may yield to pressure is if someone with locus standi properly goes to court for an order for him to comply with the JSC recommendation and the constitution. Voluntarily he won’t do it.”

 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 on the Chinamora case, 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.”

 In April, Mnangagwa appointed a three-person tribunal chaired by retired Justice Professor Simbi Veke Mubako, consisting of Dr Gift Manyatera and Sarah Moyo, to inquire into the question of removal from office of Makonese, but did not appoint a tribunal to investigate Chinamora.

While Makonese resigned immediately after members of the tribunal were sworn in, Chinhamora remains firmly ensconced in office as more skeletons tumble out of the closet.

 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.

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 and those around Mnangagwa to save Chinamora, who is seen as a pro-government judge.

 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.

 Chinamora is in deep trouble facing a series of new allegations ranging from conflict of interest, judicial misconduct, bribery to different forms of corruption.

Only recently, Chinamhora found himself in a new storm of controversy after he allegedly handed down a judgment in a case he never heard.

A complaint against him has since been lodged with Judge President Mary Zimba-Dube by the aggrieved party, a company called Balwearie Holdings (Pvt) Limited through its managing director Believe Guta.

Chinamora is already under scrutiny after Advocate Thabani Mpofu filed a complaint against him earlier in February after another attorney, Advocate Taona Nyamakura, lodged a case against the judge 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.

A panel set up by the JSC to review the complaint comprising judges Anne-Marie Gowora, Alfas Chitakunye and Custom Kachambwa concluded that Chinamora had a case to answer.

 While Mnangagwa and his officials appear determined to protect Chinamora, the case is not going away anytime soon.

 Just recently, prominent lawyer Beatrice Mtetwa accused Mnangagwa of failing to “uphold, defend, obey and respect the constitution” after he neglected or refused — or both — to appoint a tribunal to look into the suitability of Chinamora to hold office as recommended by the JSC.

 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 emphasise 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 and reported many times 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.

 Chinamora has made what are seen as pro-government rulings, one being the one which contradicted and reversed 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 that 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.

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 Recently Mtetwa also questioned why the JSC, Zimbabwe Human Rights Commission and Law Society of Zimbabwe (LSZ) were failing to act in the Chinamora 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,” she 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 as they did not take up the matter through the LSZ.

“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.

 Chinamora is facing a series of accusations ranging from conflict of interest, judicial misconduct and bribery to different forms of corruption.

 The allegations include releasing armed robbers from jail and handing down judgement on a case which he had not been heard — monumental scandals.