THE controversial appointment of Acting Prosecutor-General (PG) Ray Goba came under further scrutiny this week with the constitutionality of his handpicking for the job being questioned.
By Kudzai Kuwaza
In a letter to the Judicial Service Commission (JSC) on Wednesday, lawyer Taona Nyamakura of Mtetwa and Nyambirai Legal Practitioners, on behalf of a private citizen Majoni Mdudzi Utete, signalled his client’s intention to challenge the constitutionality of Goba’s appointment.
Nyamakura warned that they will proceed to challenge Goba’s appointment if the commission does not respond to concerns raised in their letter by November 30 2016.
“We have therefore been instructed by our client to give notice of his intention to challenge the constitutionality of the appointment of the Acting Prosecutor-General and we advise that if we have not heard from yourselves on this by 30th November, 2016, we shall proceed as instructed without further notice to you,” Nyamakura wrote.
Nyamakura, in his letter, argued that Goba’s appointment was unconstitutional.
“As you are of course aware, Section 259 of the Constitution of Zimbabwe provides that there shall be a prosecutor-general who is the head of the National Prosecuting Authority (NPA),” Nyamakura pointed out.
“A prosecutor-general is appointed as provided for under Section 180 of the constitution and it is an open secret that the Acting Prosecutor-General was not appointed in terms of the rigorous appointment procedures set out in Section 180 of the constitution. How he was appointed remains shrouded in secrecy.”
Nyamakura further argued: “In our respectful view, it is not difficult to understand why there can be no acting prosecutor-general when the provisions of Section 259 of the constitution are considered.
“Firstly, a prosecutor- general is appointed following compliance with the rigorous appointment procedures of Section 180 of the constitution. The acting prosecutor-general was not appointed in terms of the provisions of Section 180 with the result that the legislative intent of having a transparent appointment process has been subverted and instead we have a hand-picked prosecutor-general whose appointment is clearly unlawful.”
He added that an acting PG appointed outside the provisions of the constitution is unlikely to respect the supreme law and its provisions.
The appointment of Goba in an acting capacity, Nyamakura contended, was not provided for in the constitution.
“Although the present incumbent of that office is only acting, it is our respectful view that the constitution makes no provision for an acting prosecutor-general who is plucked from outside the National Prosecuting Authority,” Nyamakura said. “Although the prosecutor-general can delegate his functions to officers below him in terms of Section 7 of the National Prosecuting Authority Act, there is simply no provision in the constitution for an acting prosecutor-general. Where it was intended to have persons act in all the constitutionally created positions, the constitution makes specific provision for this such as the provisions of Section 100 which fully set out how an Acting President is appointed and what his powers are.”
Nyamakura observed that had it been the intention of the drafters of the constitution and the legislature to have an acting PG appointed in disregard of due process, the constitution would have a specific provision to this effect.
“There can be no doubt that the legislative intent for the drafters of the constitution was to have an independent impartial prosecutor-general who would not be beholden to his appointers,” Nyamakura argued. “The lack of transparency in the appointment means that the tenure of the incumbency is not even known and there would be nothing to stop the appointing authority from compromising the position by relying on acting appointments of long duration.”
Goba, Nyamakura also noted in his letter to the JSC, was not suitable for the post given his criminal record.
“Our client further complains that the acting incumbent is, in any event, unsuitable for the position given his criminal record arising from his conviction in the Republic of Namibia for attempting to defeat or obstruct the course of justice for which he was sentenced to N$2 000,00 (US$140) or six months’ imprisonment,” Nyamakura wrote. “The conviction and sentence were upheld by the High Court of Namibia and an application for leave to appeal to that country’s Supreme Court was refused.”
Nyamakura further pointed out: “It is our client’s contention that a conviction of this nature disqualifies Mr Goba from occupying the position of Prosecutor-General as such position requires the probity of a person without a criminal record of this nature who would look at allegations of defeating or obstructing the course of justice fairly and impartially without thinking of his own conviction which he obviously believes was not justified. “As was stated by the Supreme Court in Smyth V Ushewokunze & Another 1997 (2) ZLR 544 S at page 549 D: ‘Like Caeser’s wife, the prosecutor must be above any trace of suspicion’.”
The NPA has been rocked by scandals with the suspension of PG Johannes Tomana for criminal abuse of office after he allegedly dropped charges against suspects accused of bombing President Robert Mugabe’s Gushungo Dairy, among other charges brought against him. He has been indicted to appear at the High Court in February next year.