Former acting Prosecutor-General Ray Goba, who was recently removed from a substantive appointment as Prosecutor-General (PG), is fighting to hang onto his controversial and disputed engagement amid indications that a messy court battle is looming over the saga.
By Wongai Zhangazha
This comes as the Judicial Service Commission (JSC) has been advised by the Office of the President and Cabinet to restart the process of appointing a new PG as outlined in Section 180 of the Constitution, according to government officials.
A public advert for the job will soon be flighted.
When appointing a PG, the same procedure used to select a judge is used. Section 180 (3) of Constitution states that: “If the President considers that none of the persons on the list submitted to him or her in terms of subsection 2 (e) are suitable for appointment to the office, he or she must require the Judicial Service Commission to submit a further list of the three qualified persons, whereupon the President must appoint one of the nominees to the office concerned.”
Mugabe in September purportedly appointed Goba as substantive PG following the dismissal of Johannes Tomana on account of gross incompetence and misconduct. Prior to that he was acting PG.
The JSC in August publicly interviewed six candidates, namely Goba, Wilson Manase, Charles Chinyama, Misheck Hogwe, Tecler Mapota and Florence Ziyambi. The top three contenders, namely Goba, Hogwe and Manase, were recommended to Mugabe for appointment, despite all of them failing to meet the 70% internal mark set by the JSC.
The trio scored between 50 and 59%. But Goba was reportedly chosen before he was removed after a short while.
However, Goba, in a five-page letter dated November 1 to Justice minister Happyton Bonyongwe, also copied to the Chief Secretary to the President and Cabinet Misheck Sibanda, Permanent Secretary in the Justice Ministry Virginia Mabhiza and the JSC, through his lawyers Honey and Blackenberg Legal Practitioners, insisted he is still the PG.
Goba says he was procedurally appointed and can only be removed from the office through a prescribed constitutional process.
The removal of a PG is prescribed by Section 259 (7) of the constitution and this requires the application and adherence to section 187 (1) (a) (c) of the constitution when removing a judge or PG from office.
According to Section 187 of the Constitution, a PG just like a judge, can be removed from office only for inability to perform the functions of his or her office due to mental or physical incapacity, gross incompetence or gross misconduct. If the JSC proposes the removal of a judge or AG, the president must appoint a tribunal to investigate the matter. The President can only act in accordance with the tribunal recommendations.
Goba set a deadline of today for Bonyongwe to respond, arguing his removal was “unconstitutional hence null and void”.
Failure to do so, Goba says, will lead to court action.
“If we are not favoured with your confirmation that the determining process and decision to rescind our client’s appointment is a nullity for want of constitutional compliance an application to assert the integrity of the Prosecutor General’s office and appropriate declaraturs and other relief in terms of section 85 of the Constitution will necessarily be sought,” Goba’s lawyers wrote.
Citing section 62 of the Constitution as read with the Administrative Justice Act Chapter 10:28 and more particularly sections three and four, Goba’s attorneys requested that they be provided documents with the minute that Mugabe signed appointing Goba and the minute directing the publication of General Notice 493 of 2017.
The lawyers requested the minute by Bonyongwe to Mugabe requesting that Goba take oath, the minute of Mugabe responding to Bonyongwe, all correspondence to Sibanda and to the JSC in respect “of the purported rescission of the appointment” and any other relevant documents pertaining to the appointment and rescission of Goba’s post.
The argument over Goba arises from the question of whether or not he was properly appointed since he had not taken oath of office.
Goba’s lawyers, who refer to him as “PG”, are saying their client’s appointment was effected pursuant to Section 259 (3) of the constitution which states: “The Prosecutor General is appointed by the President on the advice of the Judicial Service Commission following the procedure for the appointment of a judge.”
The lawyers insist that Goba’s appointment is “indisputably valid” as the procedure followed all that is required by Section 180 (2) (a) (e).
“Our client is very aware that the Honourable H Bonyongwe in his capacity as Minister of Justice, Legal and Parliamentary Affairs—delivered a Minute to His Excellency to implement and execute the oath of office as contemplated by section 259 (6) of the Constitution,” Goba’s letter reads. “It is submitted that in the circumstances of this case, this procedural and/or ceremonial formality was not required because the same oath of office had already been administered by His Excellency when our client was first appointed as Acting Prosecutor General.”
Goba’s lawyers say that “pre and post our client’s appointment” to the office of PG, Goba was executing his duties competently without the need to suspend or terminate his duties pending a fresh ceremonial oath-taking process.
The lawyers say while the process of removing a PG requires application and adherence to Section 187 (1) (a) to (c) which states a PG or Judge can only be removed from office if he or she is unable to perform the functions of his or her office due to mental or physical incapacity, gross incompetence or gross misconduct, their client has not exhibited such behaviour.
The lawyers also say any removal must be preceded by notice of the alleged wrongdoing and an opportunity of the PG to make presentations.
“This procedural process has not taken place. Instead our client has been presented with an unconstitutional fait accompli of his purported removal from office through the simple expedient of a Gazetted Notice purporting to repeal a prior General Notice concerning our client’s appointment.
“There is no provision in the constitution empowering or authorising the President to act in the manner he did,” Goba’s lawyers write.