Bulawayo High Court judge Justice Nokuthula Moyo has ordered the Minister of Local Government, Public Works and National Housing Saviour Kasukuwere to reinstate immediately suspended Gweru Mayor Hamutendi Kombayi and 10 councillors.
The basis of the ruling was that the section of the Urban Councils Act used to suspend the councillors contravened the Constitution of Zimbabwe.
Justice Moyo’s ruling, delivered on Friday, followed an urgent chamber application filed by the 11 councillors who sought an order declaring their suspension null and void. Minister Kasukuwere in August indefinitely suspended Kombayi, his deputy Artwell Manyorauta and nine other councillors on allegations of gross misconduct, incompetence and mismanagement of council funds and affairs.
Justice Moyo said Section 114 of the Urban Councils used by the minister to suspend the councillors and to appoint a tribunal was inconsistent with Section 278 of the Constitution.
“In summary, Section 114 of the Urban Councils Act vests all powers to suspend and dismiss councillors in the Minister of Local Government, who is the first respondent. However, Section 278 of the Constitution, on the other hand, gives an impression that the Constitution has taken away the powers that the minister had in terms of Section 114 of the Urban Councils Act and vested the same in an independent tribunal which should be established through an Act of Parliament,” said Justice Moyo.
She said the Constitution was the supreme law of the land and therefore any law or Act deemed inconsistent with it had no force or effect.
“The Constitution thus speaks for itself; any act or practice which is inconsistent with its provisions is invalid to the extent of the inconsistency. It stipulates that the obligation imposed by it are binding on everyone and must be fulfilled by all, including the first respondent as Minister of Local Government,” said Justice Moyo.
She said Section 278 of the Constitution provides for the establishment of an independent tribunal to exercise the function of removing from office mayors, council chairpersons and councillors.
The councillors, through their lawyers, Chitere Chidawanyika and Partners, accused Minister Kasukuwere of acting outside the law by appointing an independent tribunal to adjudicate their case, arguing he had no right to assume the powers of Parliament.
In the court papers, the applicants cited as respondents Minister Kasukuwere, Midlands’ provincial administrator Cecilia Chitiyo and the three members of the appointed tribunal – Luckson Chikumbirike, Goodwill Khosa and Nicholas Moyo.
Kombayi, in his founding affidavit, said Minister Kasukuwere’s decision to suspend them was unconstitutional.
“I submit that once elected into office, a councillor can only be removed from office in terms of Section 278 of the Constitution of Zimbabwe (Amendment Number 20). It is clear that an Act of Parliament must establish an independent tribunal to adjudicate over any allegations levelled against the councillors and mayor of any local authority which has a bearing on removal from office,” said Kombayi.
“It is evident that a material error of law has occurred in the discharge of first respondent’s duties or responsibilities.”
Kombayi said there was no legal basis for Chitiyo to press charges against the applicants.