Saturday, 28 October 2017

PROSECUTOR GENERAL DEBACLE : LAWYERS SPEAK

President Mugabe has rescinded the appointment of Advocate Ray Goba as the country’s Prosecutor-General. In an Extraordinary Government Gazette published yesterday, General Notice 642 of 2017 repealed General Notice 493 of 2017, which announced the appointment of Adv Goba to the esteemed office on September 13 this year. “It is hereby notified that the captioned General Notice (493 of 2017) that was published in the Gazette Extraordinary on the 13th September, 2017 is repealed,” said the notice.

Adv Goba had, however, not taken up office as he was not yet sworn-in. According to Section 259 (6) of the Constitution, “before taking up office, the Prosecutor-General must take, before the President or a person authorised by the President, the oath of office in the form set out in the Third Schedule”.
Secretary for Justice, Legal and Parliamentary Affairs Mrs Virginia Mabiza said the President has the discretion, at law, to order the Judicial Service Commission (JSC) to submit another list of candidates for appointment.

“What it means now is that there is no substantive PG in Zimbabwe. The law regarding the matter is very clear that when the President is not happy with the list submitted to him, he can order the Judicial Service Commission to submit a new list. “It is within the President’s discretion to appoint another person as substantive PG,” said Mrs Mabiza.

Government is presently trying to fill in the post of Prosecutor General after the former PG, Mr Johannes Tomana — who became the first occupant of a separate office of criminal prosecutions created by the new Constitution in 2013 — was fired on June 9 this year for misconduct and incompetence. His dismissal came after a Tribunal found him guilty of the offences. Mr Tapson Dzvetero of Antonio & Dzvetero Legal Practitioners said the repeal of the notice was above board.

“It seems to me that the incumbent PG had not taken oath of office — in terms of Schedule Three of the Constitution, as read with Section 259 of the Constitution — before the President; he had not as yet taken the office of Prosecutor-General. It follows, in view, therefore, that the repealing of the gazette notifying the public of the impending appointment simply means the office of the PG is vacant,” said Mr Dzvetero.

Under the circumstances, Mr Dzvetero said, the President can appoint another office bearer from the remaining two names from the list forwarded to him by the Judicial Service Commission. “As such, there is no need, in my view, for fresh interviews to be conducted. The President can proceed to nominate from the already provided list, which includes Adv Goba, a person he deems fit,” said Mr Dzvetero.

Mr Terrence Hussein of Hussein and Ranchod said although reasons were not given in the notice, it can be assumed that certain procedures were not followed in the appointment of the PG. “I must assume that certain procedures were not followed when Mr Goba was announced the new PG. If the procedures were not followed, then the whole process and the appointment thereof become a nullity,” said Mr Hussein.
“The Government Gazette only notifies the public of what is going on. The President had not sworn Adv Goba in as PG.” Adv Goba, said Mr Hussein, will now revert back to the position of acting PG. “He would now revert to the position he held prior to the appointment until the correct appointment is made by the President,” he said.

Another lawyer Mr Tendai Toto concurred Mr Hussein adding that the public should be told the reasons behind the rescission. “If the President repealed the notice, it can mean that certain procedural issues need to be rectified or that maybe, the recommendations by the JSC or any other authorities did not find favour with the President.

“We hope the authorities will give reasons as to why we do not have a substantive PG. The President can also, through his Office, make available to the citizens of Zimbabwe reasons why the appointment has been reversed,” he said. Advocate Thabani Mpofu, however, differed.

He contends that due process dictates that Adv Goba, who he believes is the PG, can only be removed by a Tribunal. “Goba is the PG. The Constitution mandates that a certain process be activated if he is to be removed from office. Anything outside that process is constitutionally invalid and unwarranted assault on our grand norm,” he said.

Adv Goba’s appointment came after he had served as Acting PG for a year. Under the old Constitution, the Attorney-General was responsible for advising the Government and prosecuting criminal cases on behalf of the State. Under the new dispensation, the two functions have been separated, with the PG’s office now responsible for criminal prosecutions. herald

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