Due process unduly delayed
The opposition-aligned mayor of Harare was left hanging in the gap between old and new constitutions
Investors looking for fresh fields have been considering whether the time is right to put serious money into Zimbabwe. One recent Web-based investment advisory had this warning: “Capitalising on . . . opportunities still requires a short stop in Harare, and understanding the politics.” But a recent judgment from the high court in that city might help potential investors understand the judicial — and other — politics at play, without even crossing the border.
It’s the story of Harare’s mayor, Bernard Manyenyeni, whose opposition-aligned council, seeking a town clerk, made a stunning appointment in April: James Mushore, founder and former CEO of NMB Bank.
Mushore, who quit the banking sector a while back citing health reasons, was formerly president of the institute of chartered accountants of Zimbabwe, director of the Zimbabwe revenue authority and head of the Zimbabwe tourism authority. Manyenyeni’s council approved him over scores of other applicants — but the very day he started work, Mushore was fired by local government minister Saviour Kasukuwere, citing procedural irregularities.
Kasukuwere instructed Manyenyeni to make sure Mushore didn’t come to work. Manyenyeni declined to obey and was in turn suspended by the minister. That suspension was challenged in the Harare high court before Judge Mary Dube, and her decision, delivered in May, is instructive.
A member of Zimbabwe’s deeply compromised judiciary, Dube had to consider argument that the minister had acted unconstitutionally. The extraordinary actions by the minister — Zanu-PF’s political commissar and an ultra-wealthy man in his own right — are widely seen as part of a strategy to undermine opposition-dominated councils.
Legally the minister’s problem, highlighted in argument before Dube, was that he was acting in terms of old legislation giving wide-reaching power to the minister, whereas the new constitution provides a different way of dealing with conflict over municipal appointees. The best Dube could do, as she attempted to marry the two systems, was to say that the old laws still stood, in that the minister was entitled to suspend whoever he wished. But that is where his power stopped.
New laws, envisaged by the constitution, were supposed to set up a tribunal system that would allow for a hearing when someone was suspended, unlike the previous system under which the minister could sack without due process anyone he had suspended. But these laws have not yet been passed.
So Dube ruled that the minister’s suspension was valid, but that after 45 days the suspension would lapse since there was no constitutionally compliant system in place to hear the matter. Referring to the minister, she said: “He may do nothing more after the suspension. [He] ought to have realised that he was going nowhere slowly.”
The judge then permitted herself some slight criticism of parliament: “The realignment of the constitution with other laws is taking forever. This delay has a negative impact on the administration of justice.” But she quickly followed with a compliment: “Pleasing, however, are indications that the legislative department of the AG’s office is already in the process of drafting” the relevant amendments establishing a tribunal to hear matters such as these.
Her attempt to give the minister leeway and legitimise the suspension might have been expected, but she made a point worth noting since it seems to be news to that court.
Government argued the mayor could not ask the court for help since he had “dirty hands” — meaning he had disobeyed the old law saying he must do as the minister commanded.
Under the new legal dispensation, said the judge, the “dirty hands principle” had no place in constitutional cases involving breach of fundamental human rights where constitutional relief is sought, even if the litigant fails to obey a ministerial directive or “contravened any law”.