The Zimbabwe Lawyers for Human Rights (ZLHR) is taking court action against President Robert Mugabe for repealing the appointment of Prosecutor General Ray Goba, just 44 days after appointing him. The ZLHR had previously issued a statement condemning Mugabe’s actions as an attack on the rule of law and constitutionalism. ZLHR is arguing that once appointed the Prosecutor General cannot be removed from office without a tribunal being appointed to look into his conduct. The organisation is seeking an order which declares as invalid General Notice 642 of 2017 published in Government Gazette Extraordinary on the 27th October, 2017 purporting to repeal Goba’s appointment. ZLHR also wants an order compelling Mugabe to administer the prescribed oath of office on Goba.
In their application for a declaratory order and consequential relief, Mugabe is cited as the first respondent, while the Judicial Services Commission is cited as the second respondent. Goba is cited as the third respondent.
In her founding affidavit, Roselyne Hanzi, the Executive Director of the ZLHR says:
The Applicant contends that the Constitution makes no provision for the removal of a duly appointed Prosecutor-General through the repeal of the gazette that announced the appointment. Save for removal after the expiry of the two six year terms, through resignation, death or other natural causes, Applicant contends that a Prosecutor-General can only lawfully be removed from office by following the provisions of Section 259 (7) as read with Section 187 of the Constitution of Zimbabwe.
…It is important to note that the power granted to the 1st Respondent by the Constitution in the process leading to the appointment of a Prosecutor-General is a power to appoint. Such power is strictly limited to appointing from a list of three (3) candidates sent to him by the JSC. If the list does not contain suitable candidates, the 1st Respondent has powers to require for a further list from which he should appoint. It is clear that his powers are limited to appointing.
…In so far as the appointment is concerned the President immediately became functus officio (of no further official authority or legal effect ) after the publication of General Notice 493 of 2017. He cannot revisit his decision even if it turns out to him, that the candidate chosen by him may well not be suitable for such a post. If he deems that the candidate is unsuitable for any reason, including the reason of error or mistake in the appointment, then the President must constitute a Tribunal as is required by law or at the very least approach the courts. He cannot, given the seriousness and importance of the position, achieve this by simply retracting his notice informing the people of Zimbabwe of the appointment of the Prosecutor-General. To allow such a procedure would not only violate the Constitution but would also leave other similarly appointed officials open to removal on a whim and without following the removal procedures provided for in the Constitution.
…The Constitution does not provide for the power to remove a Prosecutor-General from office through a general notice without reason or legal basis. If it were Constitutional to remove a Prosecutor – General through a general notice, Johannes Tomana would have been removed in that manner.