Removal of recently appointed Prosecutor General an assault on the rule of law and constitutionalism

ZIMBABWE Lawyers for Human Rights (ZLHR) is greatly disturbed by the President’s decision to reverse the appointment of Advocate Ray Goba as the country’s Prosecutor General (PG) as this is a serious and unacceptable assault on the rule of law and constitutionalism.

Advocate Goba’s appointment was reversed by President Robert Mugabe through an Extraordinary Government Gazette, General Notice 642 of 2017, issued and signed by Misheck Sibanda, the Chief Secretary to the President and Cabinet on Friday 27 October 2017. This notice repealed the General Notice 493 of 2017 issued through an Extraordinary Government Gazette.

Ironically, Sibanda had issued the previous Government Gazette on Wednesday 13 September 2017 confirming Advocate Goba’s appointment.

Prior to his appointment as PG, Advocate Goba had been serving as Acting PG since July 2016 following the suspension and subsequent dismissal of Johannes Tomana as PG on account of alleged gross incompetence and misconduct.

Advocate Goba’s appointment came after he participated in public interviews conducted by the Judicial Service Commission (JSC) in August 2017 to select a substantive PG. These interviews were conducted in terms of section 259(3) of the Constitution. 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.

It is disconcerting that the government has decided not to adopt the provisions set out in section 187 of the Constitution, which outlines 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.

As ZLHR, we believe that this is how state actors such as those holding the esteemed office of the President should behave in a constitutional democracy that respects the rule of law.
ZLHR will not be a bystander when the Constitution is violated as such conduct is unacceptable.

In terms of section 90 of the Constitution, the President has a duty to uphold, defend and obey the Constitution as the supreme law and he must ensure that the Constitution and all other laws are faithfully observed. Further, he has a duty to ensure protection of the rule of law as provided in section 90(2)(c) of the Constitution. In the premise, the removal of Advocate Goba as PG is unconstitutional and unacceptable.

Therefore, ZLHR calls upon the President to return the country to a constitutional order by upholding the Constitution and annul the revocation of the appointment of Advocate Goba as PG.

Source: Zimbabwe Lawyers for Human Rights

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