PG’s appointment challenged

A HARARE man has petitioned the Constitutional Court (ConCourt) seeking nullification of Kumbirai Hodzi’s recent appointment as substantive Prosecutor-General (PG) on the basis that he scored badly in public interviews held last year.

BY CHARLES LAITON

In his application, Simbarashe Zuze cited President Emmerson Mnangagwa, the Judicial Services Commission (JSC), Chief Justice Luke Malaba, Justice minister Ziyambi Ziyambi and Hodzi as respondents.

Through his lawyer advocate Thabani Mpofu, Zuze said Hodzi was not fit to hold the post of the country’s top prosecutor, given that he did not fare well in the interviews and, as such, his appointment must, therefore, be declared null and void.

Some of the candidates who participated in last year’s interviews are Calvin Mantsebo, Tinomudaishe Chinyoka, Misheck Hogwe, Jessie Majome, Justice
Maphios Cheda, Wendy Rowesai Chingeya, Florence Ziyambi, Edios Edmund Marondedza and Noria Mashumba.

Apparently, out of the list, Mantsebo, Chinyoka and Hogwe were the top three respectively.

Zuze said it was clear from the public interviews that Hodzi had struggled to answer questions from the interviewing panel.

“The interviews were conducted in full public glare and the fact that fifth respondent (Hodzi) had a torrid time is known to all who cared to follow that process,” Zuze said in his founding affidavit.

“To me, it was clear that he had shown that he was clearly disqualified from being appointed to the position of Prosecutor-General. It was there for all to see. The commissioners scored him so badly. At the end of the day, he sat at the bottom of the pile. He was clearly and effectively out of the reckoning.”

Zuze further said Hodzi even failed to make it to the top six and, as such, ought not to have been considered for the job.

He said in terms of the law, the President was tasked to choose a candidate from the top three interviewees, but if he found compelling reasons on why appointment could not be made on the said three, he would advise the JSC and the public and new interviews would have to be conducted

“Once public interviews have been conducted, every citizen becomes invested with a legitimate expectation in knowing why the President has decided to ignore the results of that process and that expectation is constitutionally protected,” Zuze said.

“The process is deliberately two-tiered and public to ensure that it is co-operative rather than individualistic and arbitrary. Naturally, it follows that reasons must be given for rejecting candidates recommended on merit. The principle of legitimate expectation requires no less. It would promote arbitrary decisions if the President could simply reject selected candidates and prefer another without giving reasons.”

The matter is pending under case number CCZ3/19.

3 Comments

  1. Rwodzi wekwa Hodzi

    What does the Constitution say?…..(this is a “misinformed” challenge)

    1. The Constitution comprises many provisions that are pertinent to the appointment of the PG, including the obligation to observe the principles of good governance (transparency, rule of law etc). The most specific as far as the challenge goes are articles 180(2) and 259(3). In terms of the latter, the PG’s appointment is to be conducted in the same manner as that of a judge. That process is set out in Art 180, which provides:
      (2) Whenever it is necessary to appoint a judge, the Judicial Service Commission must–
      (a) advertise the position;
      (b) invite the President and the public to make nominations;
      (c) conduct public interviews of prospective candidates;
      (d) prepare a list of three qualified persons as nominees for the office; and
      (e) submit the list to the President;
      whereupon, subject to subsection (3), the President must appoint one of the nominees to the office concerned.
      (3) If the President considers that none of the persons on the list submitted to him 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 three qualified persons, whereupon the President must appoint one of the nominees to the office concerned.
      (4) The President must cause notice of every appointment under this section to be published in the Gazette.
      Interpret for yourself whether what happened in this case was consistent with those provisions.

  2. The court application is a very positive development, in the public interests, in the interests of a democracy subservient to the rule of law rather than the capricious whims of political elites. The appointee was not eligible for appointment, in terms of the law, period.
    The CJ is known to have objected to the President running roughshod over the outcome of the selection process.
    What kind of regime is running things in that damn country?

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