COURT WATCH 4/2019
[26th February 2019]
Appointment of Mr Kumbirai Hodzi as Prosecutor-General Gazetted:
Disengagement of Police and Military Prosecutors
In General Notice 267A/2019 [link] , published in a Government Gazette Extraordinary dated 8th February 2019, it was announced that the President had appointed Mr Kumbirai Hodzi as the Prosecutor-General with effect from 23rd January. The 23rd January was the day on which Mr Hodzi was sworn in by the President. The delay in gazetting GN 267A was undesirable but not legally significant.
Mr Hodzi had held the post since July last year in an acting capacity.
Selection Process Started in September 2018
Following the resignation of Mr Ray Goba as Prosecutor General, the Judicial Service Commission [JSC] set in train the selection of a replacement in September 2018 following the procedure laid down in sections 259(3) and 180 of the Constitution – call for nominations, public interviews and selection by the JSC, and forwarding three selected names to the President. A long delay then ensued without any announcement of an appointment, causing concern and speculation not only in legal circles but generally. In January it emerged that the President had rejected the JSC’s list of qualified candidates and called for a further list from the JSC in terms of section 180(5) of the Constitution. The President selected Mr Hodzi and he was sworn in on 23rd January.
Note: Section 180(5) of the Constitution is as follows:
“(5) If the President considers that none of the persons on the list submitted to him or her in terms of subsection (4)(e) are suitable for appointment to the office, he or she must require the Judicial Service Commission to submit a further list of three qualified persons, whereupon the President must appoint one of the nominees to the office concerned.”
Controversy over the Appointment
Mr Hodzi’s appointment has not been without controversy. Two court challenges have been launched seeking to have it set aside as invalid.
1. Zuze v President of Zimbabwe, the Judicial Service Commission and Others
This case was lodged in the Constitutional Court within days of Mr Hodzi’s assumption of office. It focussed on the fact that Mr Hodzi had not been on the first list the JSC sent to the President and had occupied joint fifth place in the rankings arrived at by the JSC after the public interviews of the candidates. On 6th February, however, Mr Justice Garwe ordered the case struck off the court roll on a technicality – for non-compliance with rule 9(5) of the Constitutional Court Rules [link], a rule that deems an application to have been abandoned if the applicant fails to provide proof of service to the court within two days of service.
Note: The court did not dismiss the case on the merits. It could be revived if the applicant sees fit. No doubt he and his advisers will take account what the JSC has already said in defence of the legality of Mr Hodzi’s appointment [see below].
2. Chirambwe v President of Zimbabwe, Judicial Service Commission& Others
Harare legal practitioner Joshua Chirambwe has also challenged Mr Hodzi’s appointment in an application filed in the Constitutional Court. The case is still to be heard.
Position of Judicial Service Commission
In its response to the Zuze application, the JSC stoutly defended Mr Hodzi’s appointment as legal and compliant with the Constitution. It emphasised that section 180(5) of the Constitution expressly allows the President to request a further list of three candidates if he “considers that none of the persons on the (first) list … are suitable for appointment” – but obliges him to make an appointment from the further list. The JSC also made the point that a candidate’s performance during interviews is by no means the only factor to be taken into account when an appointment is made. Paragraph 14 of the Guidelines on the Appointment of Judges [link] contains a non-exhaustive list of nine such factors.
Transfer of NPA Chief Law Officer Invalidated
Soon after Mr Hodzi’s appointment there was another legal controversy. He ordered the summary transfer of Mr Mutangadura, a chief law officer, from the National Prosecuting Authority [NPA] head office in Harare to Guruve, a rural magisterial station. Mr Mutangadura, a former Director of the National Prosecuting Authority’s Economic Crimes Unit, launched a High Court challenge which was dealt with as an urgent matter and succeeded. Mr Justice Zhou ruled that it was not for Mr Hodzi to transfer staff, because under the National Prosecuting Authority Act that was a matter for the NPA Board; he also opined that the sudden transfer was irrational and arbitrary. Mr Hodzi has taken steps to initiate disciplinary proceedings against Mr Mutangadura.
Service Personnel as Prosecutors
Another court case had been taken long before Mr Hodzi’s appointment – it was argued in January 2015, but judgment was only delivered on 19th February. The case was filed by the Zimbabwe Law Officers Association and a former prosecutor and was occasioned by the fact that when there was a shortage of trained prosecutors, police officers and members of the Defence Forces were seconded to the NPA. Some of these police and military officers were very good but they were not trained lawyers. When Mr Hodzi was appointed a significant number of his prosecutors and other staff were police officers and members of the Defence Forces.
On 19th February, giving its belated decision, the Constitutional Court ordered the NPA “to disengage all serving members of the security services within its employment”. The court, however, allowed the NPA twenty-four months [i.e. until 18th February 2021] to comply with the order; this was “to avoid chaos”. The judgment is available on the Veritas website [link].
The court held that the NPA’s employment of serving security service members was a serious breach of section 208(4) of the Constitution, which reads as follows:
“Serving members of the security services [i.e. the Defence Forces, the Police Service, the intelligence services and the Prisons and Correctional Service] must not be employed in civilian institutions except in periods of public emergency.”
Scope of the court order The court order, consistently with section 208(4) of the Constitution, requires the removal from the NPA of all serving security services members whether they are functioning as prosecutors or in any other capacity.
NPA needs more resources Government will inevitably have to allocate greater resources to the NPA to enable it to attract and retain competent and professional civilian personnel. Ministry of Finance and Economic Development, please note.