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Constitution which deals with the removal of judges from office.
This followed a meeting the Chief Justice had with Justice Hungwe where he explained the charges being levelled against him.
In the wake of this communication, President Mugabe is obliged to set up a tribunal to probe Justice Hungwe’s conduct.
No sitting Zimbabwean judge can sit in such a tribunal, those allowed can be persons who have been Supreme or High Court judges or they can be foreign judges from an Anglophone country that uses Roman-Dutch Law or English Law, or they can be legal practitioners of at least seven years standing shortlisted by the Law Society of Zimbabwe.
The President is empowered, in terms of section 87 (3) of the Constitution, to order investigations into the conduct of a judge upon being apprised of the matter by the Chief Justice.
The section reads: “If, in the case of a judge of the Supreme Court or the High Court other than the Chief Justice, the Chief Justice advises the President that the question of removal from office of the judge concerned ought to be investigated, the President shall appoint a tribunal to inquire into the matter.”
In terms of the same section, in November 1995 President Mugabe instituted a Commission of Inquiry to probe the conduct of Justice Fergus Blackie at the instance of former Chief Justice Anthony Gubbay when the former was charged with charges of possible misbehaviour.
Justice Blackie had in February that year, in the company of lawyer Mr David Coltart who doubled as both prosecutor and defence lawyer, driven to Nyamandlovu in Matabeleland North where he held court at night and released on bail four white commercial farmers among them Romeo Dominic Tommy, Shawn Patrick Tommy and Jeffrey Mark Swindells.
Sources at the High Court say the Chief Justice outlined to Justice Hungwe the charges being levelled against him, to which Justice Hungwe said: “I am in your hands.’’
The first charge pertains to delays he made in finalising a case pitting the State against Jonathan Mutsinze, an armed robber and murderer he convicted 10 years ago, but has failed to sentence him after losing the court record.
Mutsinze has been languishing in remand prison since then.
The second pertains to the manner in which he issued a search warrant to the Zimbabwe Anti-Corruption Commission in March in circumstances at variance with provisions of the Anti-Corruption Commission Act.
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The third charge relates to the order Justice Hungwe issued for the release of Ms Beatrice Mtetwa, who faced charges of obstructing the course of justice.
The order was issued at midnight at Justice Hungwe’s farm in Darwendale in the presence of a High Court official and Mrs Mtetwa’s defence team, but in the absence of the police and Attorney-General’s Office.
It also alleged that Justice Hungwe may have dabbled in chequebook justice after receiving Z$60 million in 2005 to acquit a prominent businessman who was facing charges of espionage.
His attempts to dispense similar justice to another prominent citizen who had been nabbed for externalising foreign currency were rebuffed and the citizen was convicted and did his time.
Though three charges were put to Justice Hungwe when he was summoned by the Chief Justice, it has since emerged Justice Hungwe was still to deliver judgment in 17 other cases dating back to 2006 in which he reserved judgment.
Some of the affected persons wrote to Justice Hungwe, through their lawyers, enquiring on the status of their cases to no avail.
One such letter dated November 16, 2010 in Case No HC4123/08 pitting RTO Engineering (Pvt) Ltd vs. Gulliver Consolidated reads, “We refer to the above matter in which the Honourable Mr Justice Hungwe heard argument and reserved judgment on 24th November 2009. Kindly let us know whether the judgment is now out as we may have missed it.’’
Online Reporter