A HARARE lawyer, Joshua Chirambwe, has lost a case in which he was seeking the nullification of Prosecutor-General (PG) Kumbirai Hodzi’s appointment by President Emmerson Mnangagwa after the Constitutional Court ruled that his arguments were based on hearsay.
A Constitutional Court bench chaired by Justice Paddington Garwe dismissed his application, finding that his arguments were built on unsubstantiated allegations of impropriety.
Chirambwe had argued that Hodzi (pictured with President Mnangagwa) failed public interviews but Mnangagwa went on to create another list so that he could accommodate him in the top prosecutorial office.
Another local man, Simbarashe Zuze, had also challenged Hodzi’s appointment but his case was struck off the roll.
Hodzi was part of several candidates who took part in public interviews in 2018 when the country sought a substantive PG following the departure of Advocate Ray Goba.
He participated together with Calvin Mantsebo, Tinomudaishe Chinyoka, Misheck Hogwe, Jessie Majome, Justice Maphios Cheda, Wendy Chingeya, Florence Ziyambi, Edios Marondedza and Noria Mashumba.
Mantsebo, Chinyoka and Hogwe emerged in the top three.
However, Chirambwe accused the President of having drawn up a further list in circumstances contrary to the law. He also said Mnangagwa sought to influence the decision of the Judicial Service Commission (JSC).
But the bench said he did not show any evidence to support his claims.
“Having considered the facts of this matter and the law, I reach the conclusion that the applicant has not established that there was such a failure by the President to fulfil the constitutional obligation imposed upon him by the Constitution in appointing the fifth respondent as the Prosecutor-General of Zimbabwe,” said Justice Garwe.
“I am of the further view that this application, largely predicated as it is on hearsay evidence, could not have been expected by the applicant to succeed.
“Unsubstantiated allegations of impropriety, based on the same hearsay, have been made against the President of the Republic of Zimbabwe, the Judicial Service Commission and the Chief Justice. Consequently, the application falls to be dismissed with an order of costs on the ordinary scale,” said the judge.
Chirambwe cited Mnangagwa, the JSC, Chief Justice Luke Malaba, Justice minister Ziyambi Ziyambi and Hodzi as respondents in his court application.
The lawyer insisted that Hodzi is not fit for the top prosecutorial job. It was his submission that Hodzi’s appointment, which was marred by controversy, must therefore be declared null and void.
“The interviews were conducted in full public glare and the fact that fifth respondent (Hodzi) had a torrid time is known to all who cared to follow that process. To me, it was clear that he had shown that he was clearly disqualified from being appointed to the position of PG.
“It was there for all to see. The commissioners scored him so badly (that) at the end of the day, he sat at the bottom of the pile. He was clearly and effectively out of the reckoning,” Chirambwe said in his founding affidavit.
In response, Fortune Chimbaru from the Attorney-General’s office, who was representing Mnangagwa and Ziyambi, challenged the allegations and told the full bench that Chirambwe did not support his arguments with evidence.
Chimbaru also submitted that Mnangagwa had discretion to appoint a PG of his choice.
“The applicant must establish facts which establish failure to adhere to Constitutional provisions by the first and fourth respondent (Mnangagwa and Ziyambi). This has not been done,” she said.
“The basis of the alleged failure is based in speculations. Criteria for rejecting a list is not set out in the Constitution.”
Chimbaru added: “Surely, the President cannot be called upon to give reasons why there was a second list when the Constitution does not call for him to do so.”
In a separate case, High Court judge Tawanda Chitapi has dismissed an urgent chamber application by a law student, Chamunorwa Chingwe, who was seeking an order directing the JSC to also consider practising lawyers for appointment as Supreme Court and Constitutional Court judges.
Chingwe was also seeking a relief interdicting and ordering the JSC, President Mnangagwa and Justice minister Ziyambi not to proceed with the appointment of any substantive judges of either the Supreme Court or Constitutional Court without following the process in Section 180 (4) of the constitution “to allow for all persons who are not sitting judges to be considered for appointment for such positions”.
In making the application, Chingwe said he had become aware “of an attempt to appoint judges of the Supreme Court by the respondents without conducting public interviews for persons who are not sitting judges as required by the Constitution of Zimbabwe”.
Chingwe noted that the Constitution of Zimbabwe Amendment (No.2) Act repealed and replaced section 180 which allowed for judicial appointments to be made after the JSC had advertised the post, conducted public interviews, and sent a list to the President to appoint from, whether a candidate was a sitting judge or not.
The High Court however dismissed his requests, noting that his application has been overtaken by events and the provisional order sought by Chingwe is legally incompetent.
“Therefore, having found that the provisional order sought is legally incompetent in that the court cannot prescribe how constitutional function reposed in a constitutional body should be exercised by that body unless there exists in the constitution or other legislation reference on how the function must be exercised the loci standi of the applicant become inconsequential.
“If a party petitions the court praying for a legally incompetent order, the court will not bother about the legal standing of any of the parties to the invalid lis. In casu, I consider that the applicant acted precipitately in filing the application because it was legally incompetent to order how the respondents were supposed to carry out their function,” said Justice Chitapi.
Added the judge: “The applicant stated that he was acting in his own interest. He stated that his interest arose from his desire to correct procedure to be followed to ensure that only the best and meritorious judges are appointed to the Supreme court and Constitutional Court because the applicant was a litigant who would have his cases decided in those courts.
“I don’t unfortunately consider it necessary under the circumstances and the approach I have adopted to answer the issue of degree of proof needed. I have answered the issue by stating that whether the person who filed the incompetent application has legal status or power to petition the court.
“The other matter requiring comment is the fact that the judges were appointed anyway. Therefore, what was intended to be achieved by this application was overtaken by events,” ruled the judge.
Chingwe had insisted on his application, despite being overtaken by events because the respondents could still make further appointments.
Justice Chitapi said in view of the finding he made, that the applicant sought incompetent relief, the appointments made would have to be considered so far as they impact on this application on the findings, he made on the incompetence of the relief sought.
The law student argued that the selection process must abide by the statutes, which allow for the appointment of any man or woman who meets the requirements set out under section 178 of the Constitution.
He further said that the JSC must also abide by its duties which are set out in the constitution.
Chingwe insisted that appointing judges only to the Supreme Court or Constitutional Court, would be unfair and disadvantage some legal practitioners who qualify for the jobs.
—-STAFF WRITER.
