High Court reserves ruling in AG, Prosecutors case

their prosecuting certificates by Attorney General Mr Johannes Tomana.
Justice Ben Hlatshwayo is set to determine the preliminary issues on whether it was proper for the AG to withdraw the certificates without hearing the side of the prosecutors.
The court heard preliminary arguments from both parties.
The prosecutors, Mr Leopold Mudisi, Mr Dereck Charamba, Mr Musekiwa Mbanje, Mr Patrobs Dube and Mr Mehluli Tshuma, are executive members of the Zimbabwe Law Officers Association whose prosecuting powers were withdrawn last month.
They are accused of mobilising their members to go on strike demanding a salary increase.
According to the AG, the five were asked to explain the industrial action Ziloa staged in October and the effects thereof including the locking offices at Mutare Magistrates’ Court.
The five reportedly did not respond to the charges against them in the time expected by the AG. Their silence was taken to mean that they were guilty.
That resulted in the AG serving the five with letters informing them of the withdrawal of their prosecuting certificates.
Keys to their offices were surrendered to the Deputy AG Mrs Florence Ziyambi and acting director of prosecutions Mr Tawanda Zvekare.
According to the State, the withdrawal was done on the strength of the powers granted to the AG in terms of the Constitution of Zimbabwe.
During the hearing Harare lawyer Ms Beatrice Mtetwa argued that the AG’s action was wrong and not supported by the law.
Ms Mtetwa said Mr Tomana had no powers to withdraw the certificates without following the due process.
She said the five deserved to be heard before the decision to terminate the certificates was taken.
Ms Mtetwa said Mr Tomana could have raised the issue with the Public Service Commission, who is the prosecutors’ employer, and PSC would suspend them pending an investigation.
Dismissing a preliminary point raised by the AG that his power to issue or withdraw certificates could not be reviewed by the courts, Ms Mtetwa said the AG was not above the law. She said the courts had jurisdiction to review Mr Tomana’s administrative actions.
“What the AG is trying to say is that whatever decision he takes no matter how absurd, should not be scrutinised.
“In other words if he hates a prosecutor’s face, he can withdraw his certificate without an inquiry, which is not proper. When the certificate is issued, certain rights will be attached to its issuance and that it can not be taken away willy-nilly without adherence to the principles of administration of justice.
“For example, the Registrar General has powers to issue a marriage certificate.
“If I get married tomorrow, does that mean that Mr Mudede has the power to withdraw the marriage certificate after 12 days for the simple reason that he does not like my husband?” asked Ms Mtetwa.
“If judges or the President’s administrative actions are subjected to judicial scrutiny, why should the AG be above the law?
“There is no provision that allows the AG to take administrative action that cannot be judicially scrutinised,” she said.
Chief law officers Mr Chris Mutangadura and Mr Nelson Mutsonziwa represented the AG and both addressed the court on the preliminary points.
Mr Mutsonziwa argued that the AG should not be sued in personal capacity like what the five did.
He argued the Administration of Justice Act required one to sue the AG only in his official capacity and that on that basis alone, the application should be dismissed.
He further submitted that the Constitution of Zimbabwe in particular Section 76 allows the AG to delegate the powers to prosecute and that he is also empowered to withdraw those powers.
Mr Mutsonziwa defended the idea of not hearing the side of the prosecutors saying the AG had no powers to suspend or the conduct disciplinary hearings. He said the AG only has an option to withdraw his certificate, the powers he derives from the Constitution of Zimbabwe.
Mr Mutangadura said the five were accorded the right to be heard through the first letter but instead they chose to challenge the AG’s authority.
He argued that the withdrawal was above board and it was within the AG’s powers.