THE Judiciary Service Commission (JSC) has castigated Prosecutor-General (PG) Johannes Tomana’s move to block local judges from leading disciplinary proceedings against him.
BY CHARLES LAITON
JSC said Tomana’s demand to have foreign judges preside over his tribunal was an attack on the integrity of the local judges.
Sometime in March this year, Tomana, through his lawyer Advocate Thabani Mpofu, approached the Constitutional Court (ConCourt) challenging the composition of the tribunal to preside over incompetence charges against him, arguing JSC had no jurisdiction to preside over the disciplinary matters.
This was after High Court judge Justice Lavender Makoni had dismissed Tomana’s application seeking to have the tribunal composed of retired or foreign judges.
But in her affidavit filed with the JSC’s heads of argument yesterday, JSC secretary Justice Rita Makarau said High Court judges were competent enough to handle any matters.
“There is no allegation that the judges presently sitting are biased. The applicant (Tomana) has not alleged that the judges of the High Court cannot criticise the actions of the head of the judiciary (Chief Justice Godfrey Chidyausiku) performed in his capacity as an administrator,” Justice Makarau said.
“The applicant questions the integrity of all the High Court judges and this is a veiled attack on the judges as not being competent to discharge their constitutional judicial mandate.
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She added: “Further, the applicant has not pointed out the clear constitutional provision which obliges a recusal of all sitting judges from hearing a matter involving a public officer and an administrative board such as the 1st respondent (JSC).”
Through Advocate Mpofu, Tomana had filed an urgent chamber application seeking to bar the JSC from instituting any disciplinary proceedings against him, arguing the move by the JSC was unconstitutional.
He argued what the JSC had done “amounts to tying applicant’s hands behind his back and throwing him into a ring and then telling him to fight. This is unacceptable, that process ought to be stayed.”
He added: “It is also clear that the first respondent (JSC) has misread provisions of sections 259(7) and 187 of the Constitution of Zimbabwe . . . What section 259 means is that the Tribunal process which applies to judges applies mutatis mutandis (the other way round) to a Prosecutor-General. That is all. The Judiciary Service Commission deals with the Judiciary and cannot deal with the Executive. The Constitution does not allow this straddling of functions and roles.”
