Friday, 2 September 2016

ACTING PROSECUTOR GENERAL IS A CONVICTED CRIMINAL

ACTING Prosecutor General (PG) Advocate Ray Goba’s suitability for office has been thrown in doubt after it emerged locally this week he has a criminal record in Namibia where he was also declared a prohibited immigrant, while he worked there as deputy prosecutor-general and legal services director until five years ago.

This has put the appointing and supervising authorities President Robert Mugabe and Vice-President Emmerson Mnangagwa, who is in charge of the Justice ministry, in an invidious position as the PG’s job requires someone with integrity or simply without a criminal record.

Goba was sworn in as the acting PG on July 7 by President Robert Mugabe after the setting up of a tribunal to determine if the suspended Johannes Tomana is suitable to continue holding the position. The tribunal was given three months to make a determination during which period Goba would be acting.

Tomana was suspended for criminal abuse of office and hearings into his case are on.

Some lawyers have also questioned the constitutionality of appointing an acting PG from outside when Tomana is still in office.

Goba, who served as Namibia’s Deputy Prosecutor General, was convicted in a Namibian regional court in 2002 for driving a vehicle on a public road with excessive blood alcohol concentration in contravention of Section 140 (2) of the Road Traffic Ordinance 1967; failing to obey a road traffic sign in contravention of section of section 101 (1) of the Ordinance and attempting to defeat or obstruct the course of justice.

The conviction over his attempt to obstruct or defeat the course of justice, in particular, is haunting Goba, who was denied a work and residence permit in Namibia in 2011 on the strength of the conviction.

Following the regional court’s ruling an aggrieved Goba appealed to the High Court in 2004 seeking to quash the conviction.

Justice Gerhard Maritz, however, upheld Goba’s conviction over his failure to obey a road traffic sign and attempting to obstruct or defeat the course of justice.

The appeal against conviction for driving a vehicle with excessive blood alcohol concentration was successful after Maritz ruled that the prosecution had failed to prove beyond any reasonable doubt that the blood which had been analysed was the specimen obtained from Goba shortly after his arrest.

His application for leave to appeal at the Supreme Court was dismissed.

According to court documents, Goba’s conviction on the charge of attempting to obstruct or defeat the course of justice was premised on the allegation that he “knowingly tried to avoid the taking of a specimen of his blood within the statutory period of two hours by (a) refusing to furnish the law enforcement officers with the cellphone or telephone number of his legal representative before the specimen was taken; (b) attempting to escape while being transported in lawful custody to the hospital for the specimen to be taken; (c) attempting to escape from lawful custody at the hospital before the specimen was taken (d) attempting by threats to intimidate the law enforcement officers not to investigate the alleged offence against him and (e) refusing to submit to the taking of a blood specimen by the doctor when requested to do so.”

Goba was arrested at 2:15am on February 12 2000 by traffic police officers after he turned right in conflict with a directional arrow, leading to the chain of events which resulted in his conviction for attempting to defeat the course of justice.

Following his conviction, the Namibian government declined to renew his employment permit which lapsed on December 31 2010 after he failed to secure work and residence permits. At the time he was the Chief Director of Legal Services and International Cooperation in the Ministry of Justice.

Goba applied again for a work permit and a permanent residence permit to legitimise his stay in Namibia after the termination of his contract, but learnt on February 15 2011 that both applications had been rejected.

He appealed to the Minister of Home Affairs and Immigration on February 18, explaining that his last contract of employment had come to an end unexpectedly and pointed out that he had also appealed against the refusal of permanent residence and was awaiting a decision in respect thereof. He also filed a High Court application seeking the review and setting aside of the decisions taken by the Immigration Selection Board to refuse to grant him permanent residence and employment permits. In addition, Goba sought an order that he be entitled to carry on his profession in Namibia and another one that the Director of Immigration issue him a permanent residence permit.

He indicated that he wanted to work with Namibian law firm Shikongo Law Chambers.

However, Justice Raymond Heathcote dismissed his application, citing his conviction.

“Unfortunately for the applicant, he was convicted (by a Namibian Court after he came to Namibia), on a charge of attempting to obstruct or defeat the course of justice. On appeal, this conviction was confirmed by the High Court on 29 June 2004. An application for leave to appeal to the Supreme Court was also refused,” Heathcote ruled.

“In various subsequent applications for visas the applicant sought to downplay the offence as a ‘traffic offence’, or failed to furnish details of the offence as he was required to do.

“As a legal practitioner, the applicant would have known that in terms of section 39(2) (f) (i) of the Immigration Control, Act 1993, (herein after ‘the Act’) any person who has been convicted in Namibia of any offence specified in Schedule 1 of that Act, shall be a prohibited immigrant in respect of Namibia. Schedule 1 of the Act includes the offence of ‘defeating or obstructing the course of justice’ and any attempt to do so.

“During argument it soon became clear that, if section 39(2)(f)(i) declared the applicant a prohibited immigrant, the application cannot succeed.”

Heathcote dismissed Goba’s application, saying: “I conclude therefore that applicant, having been found guilty of an attempt to defeat the course of justice (in Namibia by the Namibian Courts), is a prohibited immigrant, and the court cannot under such circumstances grant the interim relief.”

Goba told the Zimbabwe Independent yesterday the charges brought against him were “racially-motivated” and “unjust” after clashes with two white police officers while driving home at night. He said he had an altercation with them after they accused him of drunken driving as well as straddling an unbroken traffic line. Goba claimed he was manhandled and denied access to a lawyer. Police accused him of threatening them, a charge he denied.

“Surely how could I threaten uniformed officers? I just told them that I would sue them to the last donkey. I can be accused of arrogance because I was arrogant. I’m arrogant when I know that I am right,” he said.

Legal practitioners have questioned whether Goba is fit for the PG’s job in light of his conviction. In terms of Zimbabwe’s Constitution, a PG must meet stipulated qualities.

A “fit and proper person”, according to the dictates of law, must satisfy a raft of ethical and professional attributes, in particular honesty and reliability.

Goba said those questioning his integrity and suitability for the post, though entitled to their opinions, were malicious. He said his superiors were aware of his criminal record.

“I have nothing to hide. Before I took up this post, I disclosed this issue to my superiors. If they appointed me after I revealed this then surely I must have done something good in Namibia where I served with distinction,” he said. “The world is full of malicious people. Why did they provide this information to you (the media) and not to the President or the Minister of Justice? Those who are questioning my suitability for office are entitled to their opinion, but if a minor traffic violation is used as a yardstick to determine one’s suitability for office, then no one would be appointed in any office anywhere. I am probably the best person to do the job because I have personally experienced injustice in the criminal justice system. I know what injustice is and how the criminal justice system can bring about unjust results.”

Goba was appointed Namibia’s Deputy Prosecutor General in 1998 and served in the Justice ministry until December 2010. independent

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