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Harare Bureau
SUSPENDED Harare mayor Councillor Bernard Manyenyeni has approached the High Court challenging his suspension which he deems unlawful and to be in contravention of provisions of the Constitution. Manyenyeni was suspended this week by Local Government, Public Works and National Housing Minister Saviour Kasukuwere for unprocedurally appointing former NMBZ chief executive James Mushore as the city’s town clerk in violation of the Urban Councils Act.
During his indefinite suspension, Manyenyeni will neither receive allowances nor will he be allowed to conduct council business. In an urgent chamber application filed at the High Court in Harare yesterday, Manyenyeni listed Minister Kasukuwere and Attorney General Advocate Prince Machaya as respondents.
Manyenyeni, who enlisted the services of the Zimbabwe Lawyers for Human Rights — Messrs Dzimbabgwe Chimbwa and David Hofisi to argue his case, contends that in terms of the Constitution of Zimbabwe 2013, removal of mayors, councillors and chairpersons is done by an independent tribunal in terms of an Act of Parliament.
“There is neither that Act of Parliament nor independent tribunal,” argues Cllr Manyenyeni. “The first respondent (Minister Kasukuwere) has thus arrogated to himself powers he no longer has in violation of the Constitution of Zimbabwe.”
Pending the final resolution of the matter either in the court of first instance or on appeal, Cllr Manyenyeni is requesting the court to suspend the letter of his suspension and continue with his mayoral function with full benefits.
He also seeks the court to stop Minister Kasukuwere from suspending, dismissing or engaging in any other activity with a view to removing him from office of Mayor of Harare. Minister Kasukuwere has also threatened to suspend corrupt councillors as he moves in to clean up all local authorities.
In his application, Cllr Manyenyeni said the council resolved to appoint Mushore to the post of town clerk following an open and transparent process of advertising and interviews.
Mushore emerged as the highest scorer in terms of the process. Further to the resolution, Cllr Manyenyeni argued that Mushore was offered a contract of employment.
Cllr Manyenyeni premised his argument on Section 278(2) and (3) of the Constitution which provides that:
(2) An Act of Parliament must provide for the establishment of an independent tribunal to exercise the function of removing from office mayors, chairpersons and councillors, but any such removal must only be on the grounds of:
(a) inability to perform the functions of their office due to mental or physical incapacity;
(b) gross incompetence;
(c) gross misconduct;
(d) conviction of an offence involving dishonesty, corruption or abuse of office; or
(e) wilful violation of the law, including a local authority by-law.
(3) A mayor, chairperson or councillor of a local authority does not vacate his or her seat except in accordance with this section.
To buttress his case, Cllr Manyenyeni also cited Section 2 of the Constitution which states that the Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency. Mushore was still reporting for duty despite the two orders, with Cllr Manyenyeni saying he was waiting for the High Court to rule on the matter.
Online Reporter