JSC agonises over PG’s appointment
This follows President Robert Mugabe’s decision to rescind the confirmation of newly-appointed PG, Ray Goba, less than two months into his job.
JSC secretary Rita Makarau told the Daily News on Monday that the commission will now sit to deliberate on whether to start the interview process from scratch or shortlist applicants that had already been interviewed, before forwarding their names to Mugabe for consideration.
“That decision will be made by the Judicial Service Commission when they meet on November 2,” Makarau said.
Asked who the current acting PG was, Makarau referred this reporter to the Justice ministry.
She said: “Well, that is beyond the commission. You would have to find out from the ministry of Justice.”
The JSC’s mandate is that of appointing, assigning, promoting, supervising, fixing conditions of service to members in the Judicial Service and exercising disciplinary powers to them.
It is also responsible for the well-being and good administration of the judicial service and its maintenance in a high state of efficiency.
The JSC also deals with complaints or grievances by or against members.
The Judicial Service Commission announces that a vacancy of Prosecutor-General of the Republic of Zimbabwe has arisen.
In terms of the supreme law of the land, whenever a vacancy arises at the PG level, members of the public are invited to nominate suitably qualified persons to fill the position.
The JSC will then interview the aspiring candidates, shortlist the top performing ones and submit the list to the president for consideration.
Goba’s appointment came after he had participated in public interviews conducted by the JSC in August to select a substantive PG following the dismissal of Johannes Tomana.
The JSC had shortlisted eight candidates, of which Goba was leading the pack after excelling in those interviews.
On September 13, the chief secretary to the President and Cabinet Misheck Sibanda announced the appointment of Goba through a Government Gazette.
But before he could be sworn in, Sibanda announced in an extraordinary gazette on Friday last week that Goba’s appointment had been reversed by Mugabe.
The notice effectively revoked the previous general notice that brought Goba into office.
Goba, who once served as Namibia’s deputy PG, was in 2002 convicted of drunk driving in Namibia and failing to obey a road traffic sign as well as attempting to defeat or obstruct the course of justice.
The conviction forced the Namibian government to deny him a work and residence permit in 2011.
Goba challenged the ministry’s decision in court but lost.
He appeared to be back on track after he was part of eight candidates interviewed in public by the JSC on August 21 for appointment as Zimbabwe’s second PG.
During the public interviews, Goba was grilled over his conviction.
He did not deny the conviction, which he described as unfortunate, claiming the matter was irrationally dealt with, leading to the conviction.
Chief Justice Luke Malaba, who was among the panel of interviewers, suggested Goba seemed to treat the offence lightly.
“Every offence is serious, but it should be considered against the background and circumstances…It’s a blot on a white piece of paper,” the Goba defended himself then.
His conviction in Namibia became a shackle around his neck.
Constitutional experts maintain that the initial gazetting was a confirmation that Goba had satisfied the requirements of the Constitution and he could only be removed from office for gross incompetence.
Observers also opined that the JSC has another option of advising Mugabe to do the right thing, which is to appoint a tribunal to inquire into the matter.
Last Friday, Goba had hinted that he was considering taking legal action.
But reached for comment yesterday, Goba kept his cards close to his chest.
“My lips are sealed. I sealed them,” he said.
Prior to his appointment as PG, Goba had been serving as acting PG since July 2016 following the suspension and subsequent dismissal of Tomana on account of alleged gross incompetence and misconduct.
Zimbabwe Lawyers for Human Rights (ZLHR) said Mugabe’s decision to reverse the appointment of Goba as the country’s PG is “a serious and unacceptable assault on the rule of law and constitutionalism.
“ZLHR is perturbed that president Mugabe has resorted to undermining the JSC, which had complied with the constitutional provisions set out in section 259(3).
“The decision to reverse the appointment of Advocate Goba is a clear violation of the Constitution, and an attack on the Office of the PG as well as the JSC as an institution. Advocate Goba’s appointment was made from the shortlist of names submitted by the JSC as required by the Constitution.
“It is unconstitutional for president Mugabe to seek to remove Advocate Goba by changing his mind forty-four (44) days after having exercised his executive powers by appointing Advocate Goba as the new PG.”
ZLHR said government should adopt the provisions set out in section 187 of the Constitution, which outline procedures for the removal of the PG, which according to section 259(7) is the same as that for removal of a judge from office.
“Section 187 of the Constitution, provides that the PG just like a judge may 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 advises the president that the question of removing a judge, including the Chief Justice from office ought to be investigated then the president must appoint a tribunal to inquire into the matter. The composition of the tribunal is provided for in Section 187 (4) (a) and (b) of the Constitution.
“Thereafter, the president can only act in accordance with the tribunal’s recommendation after receiving the tribunal’s report of its findings recommending whether or not a judge or PG should be removed from office.” Daily News