Daniel Nemukuyu Senior Court Reporter
ADVOCATE Ray Hemington Goba remains the substantive Prosecutor-General of Zimbabwe and his removal from office was done unlawfully, the High Court has ruled.
High Court judge Justice Priscilla Chigumba provisionally set aside Government Gazette Extraordinary Notice 642 /2017 that rescinded the PG’s appointment in a challenge filed by the Zimbabwe Lawyers for Human Rights. The judge interdicted the Judicial Service Commission (JSC) from conducting fresh public interviews to select Adv Goba’s replacement.
“The third respondent (Adv Goba) shall remain an appointed Prosecutor-General until the final determination of the matter. Pending the determination of the matter and final pronouncement on the validity or otherwise of the Government Gazette Extraordinary 642 /2017, the first and second respondents (former President Mugabe) and JSC) be and are hereby interdicted from continuing any process for the appointment of a Prosecutor-General,” reads the operative part of the judgment.
Advocate Eric Matinenga, who argued the case on behalf of ZLHR, said Adv Goba should go back to his office and perform his prosecutorial functions.
“The court judgment simply communicates that Adv Goba must continue service as PG. He must go back to his office immediately,” said Adv Matinenga.
Justice Chigumba said Adv Goba’s constitutional rights were trampled upon.
“Third respondent’s right to administrative justice had not been upheld and his right to be removed in a dignified manner befitting a constitutional appointee was trampled upon,” reads part of the judgment.
The judge said the former President had no option, but to swear Adv Goba into office within reasonable time.
“The oath of office should have been administered within a reasonable period after his appointment. There is prima facie evidence of conduct inconsistent with provisions of the Constitution. It follows that the conduct can be interdicted,” the judge said.
Cde Mugabe, the judge said, had already exercised his discretion to appoint Adv Goba and that he was not entitled to a second bite of the cherry.
“The first respondent (Cde Mugabe) was not entitled to a second bite of the cherry, to instruct the second respondent (JSC) to begin the process of finding a replacement for the third respondent as PG.
“He had already elected to proceed in terms of Section 180(2) (a) to (e), hence he was precluded from subsequently invoking Section 180(3), unless and until the nominee appointed in terms of Section 180 (2), had been removed in terms of Section 187 of the Constitution,” she said.
Cde Mugabe, the judge said, was obliged to furnish Adv Goba with reasons for the rescission of his appointment. It was also the court’s finding that the former Head of State had no power to issue the General Notice 642 /2017 that had the effect of removing Adv Goba from office.
“The inescapable conclusion is that there was no lawful exercise of Constitutional authority in the purported rescission of the third respondent’s appointment as PG,” ruled Justice Chigumba.
The then President, in terms of the supreme law of the country, was obliged to ensure the swearing-in of Adv Goba, but still, in the absence of that oath of office, Adv Goba remained an appointed PG.