Suspended Harare mayor Councillor Bernard Manyenyeni has approached the High Court challenging his suspension which he terms to be unlawful and in contravention of provisions of the Constitution. Clr Manyenyeni was suspended this week by Local Government, Public Works and National Housing Minister Saviour Kasukuwere for unprocedurally appointing former NMBZ chief executive Mr James Mushore as the city’s town clerk in violation of the Urban Councils Act.
In an urgent chamber application filed in the High Court yesterday, Clr Manyenyeni listed Minister Kasukuwere and Attorney-General Advocate Prince Machaya as respondents. Clr Manyenyeni, who enlisted the services of the Zimbabwe Lawyers for Human Rights — Mr Dzimbabgwe Chimbwa and Mr David Hofisi, contends that in terms of the Constitution of Zimbabwe, removal of mayors, councillors and chairpersons is done by an independent tribunal in terms of an Act of Parliament.
“There is neither that Act of Parliament nor independent tribunal,” argues Clr Manyenyeni. “The first respondent (Minister Kasukuwere) has thus arrogated to himself powers he no longer has in violation of the Constitution of Zimbabwe.”
Pending the final resolution of the matter either in the court of first instance or on appeal, Clr Manyenyeni is requesting the court to suspend the letter of his suspension and continue with his mayoral function with full benefits.
He also seeks the court to stop Minister Kasukuwere from suspending, dismissing or engaging in any other activity with a view to removing him from office of Mayor of Harare. Minister Kasukuwere also threatened to suspend corrupt councillors.
In his application, Clr Manyenyeni says, the council resolved to appoint Mr Mushore to the post of town clerk following an open and transparent process of advertising and interviews. Mr Mushore emerged as the highest scorer in terms of the process. Further to the resolution, Clr Manyenyeni argues that Mr Mushore was offered a contract of employment.
Clr Manyenyeni premised his argument on Section 278 (2) and (3) of the Constitution which provides that:
(2) An Act of Parliament must provide for the establishment of an independent tribunal to exercise the function of removing from office mayors, chairpersons and councillors, but any such removal must only be on the grounds of;
(a) inability to perform the functions of their office due to mental or physical incapacity;
(b) gross incompetence;
(c) gross misconduct;
(d) conviction of an offence involving dishonesty, corruption or abuse of office; or
(e) wilful violation of the law, including a local authority by-law.
(3) A mayor, chairperson or councillor of a local authority does not vacate his or her seat except in accordance with this section.
To buttress his case, Clr Manyenyeni also cited Section 2 of the Constitution which states that the Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.
It further reads; “The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative and judicial institutions and agencies of Government at every level and must be fulfilled by them.”
In this regard, Clr Manyenyeni argues that the Constitution is binding on all persons including Minister Kasukuwere. “Any conduct, law or practice inconsistent with the Constitution is invalid,” he says.
“The constitution provides for the removal of mayors such as myself. Such removal can only be in terms of Section 278. That section requires an independent tribunal to be set up in terms of an Act of Parliament.
“The power to remove a mayor, chairperson or councillor is no longer vested in a Minister, but in an Independent Tribunal set up in terms of an Act of Parliament,” he argues.
“Thus there is no way that the minister can purport to suspend or remove me from office. His authority to do so can only emanate from an Act of Parliament which provides for the establishment of an Independent Tribunal pursuant to the provisions of the current Constitution.
That Act of Parliament is yet to be promulgated. “The first respondent’s hands are therefore tied. He should seek legislative intervention to get a lawful basis to set up the independent tribunal contemplated by the Constitution.”
Government rescinded the appointment of Mr Mushore soon after a council meeting that announced his appointment, saying council flouted procedures of appointing a town clerk as outlined in the Urban Councils Act and the Local Government Board.
The minister had told the city that the former banker’s appointment was illegal, but the defiant council proceeded to give Mr Mushore the job.
Mr Mushore was still reporting for duty despite the two orders, with Clr Manyenyeni saying he was waiting for the High Court to rule on the matter. herald