adminMashudu Netsianda Senior Court Reporter
A HIGH Court judge has blasted MPs for dragging their feet in aligning laws with the country’s Constitution, saying the delays impacted negatively on the administration of the justice system. Justice Mary Dube of the Harare High Court made the remarks as she dismissed an application by Harare Mayor Bernard Manyenyeni challenging his suspension by Local Government, Public Works and National Housing Minister Saviour Kasukuwere.
Kasukuwere suspended Manyenyeni from office on March 20 this year following a dispute over the appointment of James Mushore as the new town clerk in defiance of the minister who had ordered the rescission of the appointment.
The minister argued that Mushore’s appointment violated the Urban Councils Act. Justice Dube said the re-alignment of the Constitution with other laws was “taking forever”, the new Constitution having been adopted in May 2013.
“These amendments have been in abeyance for just too long and they are taking forever. Parliament is required to act with speed and give priority to this process as this delay has a negative impact on the administration of justice,” said the judge.
Justice Dube said although Kasukuwere’s decision to suspend Manyenyeni was in accordance with the law, he had no powers to dismiss the mayor after the lapse of the suspension in 45 days in the absence of an independent tribunal as envisaged in the new Constitution.
“He (Minister) may do nothing more after the suspension. The suspension only runs for 45 days during which period the dismissal is expected to take place in terms of section 278 of the Constitution. In my view, if an independent tribunal is not in place in terms of the Constitution within 45 days of the suspension that is the end of the matter,” she said.
The mayor contested his suspension, arguing that, by virtue of the new Constitution, the minister no longer had power to suspend him.
Manyenyeni, in his application, sought an order directing his reinstatement to the post with full pay and benefits.
Section 278 of the Constitution, which deals with the tenure of mayors and councillors, states that an Act of Parliament must provide for the establishment of an independent tribunal to exercise the function of removing from office mayors and councillors.
Section 114 of the Urban Councils Act, which has not been repealed, allows the minister to suspend and remove from office a mayor or councillor.
Justice Dube said although she was largely in agreement with the findings of her Bulawayo counterpart, Justice Francis Bere, who handled a similar case involving the Gweru mayor Hamutendi Kombayi, the point of divergence was over the minister’s powers to suspend councillors.
“The two cases can be distinguished on the premise that the case before Justice Bere was one of dismissal and removal of a councillor while this case involves the minister’s power to suspend only,” said the judge.
“I agree further that in order for a tribunal to be set up, a law has to be put in place first to enable the setting up of such a tribunal in cases involving disciplining councillors.”
Justice Dube said Kasukuwere’s attempt in the Kombayi case to convene a tribunal to inquire into allegations of misappropriation of funds was futile since there is no Act of Parliament that provides for the tribunal as envisaged by the provisions of section 278 of the Constitution.
Kasukuwere last night said the alignment of the Urban Councils Act was already in motion. On Monday, he said, the new amendments were published in an extraordinary government gazette.
derick.khumalo