adminMashudu Netsianda Senior Court Reporter
BULAWAYO High Court judge Justice Nokuthula Moyo has ordered the Minister of Local Government, Public Works and National Housing, Saviour Kasukuwere to immediately reinstate suspended Gweru mayor Hamutendi Kombayi and 10 councillors. The basis of the ruling was that the section of the Urban Councils Act that was used to suspend the city fathers contravened the Constitution- the supreme law of the country.
Justice Moyo’s ruling, which was delivered yesterday, followed an urgent chamber application filed by the 11 councillors who sought an order declaring their suspension null and void. Minister Kasukuwere in August indefinitely suspended Kombayi, his deputy Artwell Manyorauta and other councillors on allegations of gross misconduct, incompetence and mismanagement of council funds and affairs.
Justice Moyo said section 114 of the Urban Councils which the Minister used to suspend the councillors and appointing a tribunal was inconsistent with section 278 of the Constitution. “In summary, section 114 of the Urban Councils Act vests all powers to suspend and dismiss councillors, in the Minister of Local Government who is the first respondent. However, section 278 of the Constitution on the other hand gives an impression that the Constitution has taken away the powers that the Minister had in terms of section 114 of the Urban Councils Act and vested the same in an independent tribunal which should be established through an Act of Parliament,” said Justice Moyo.
She said the Constitution is the supreme law of the land and any law or Act which is inconsistent with it has no force or effect. “The Constitution thus speaks for itself, any act or practice which is inconsistent with its provisions is invalid to the extent of the inconsistency. It stipulates that the obligation imposed by it are binding on everyone and must be fulfilled by all including the first respondent as Minister of Local Government,” said Justice Moyo.
She said the section 278 of the Constitution provides for the establishment of an independent tribunal to exercise the function of removing from office mayors, council chairpersons and councillors. “It doesn’t vest any authority to remove councillors in the Minister anymore, neither does it grant the Minister powers to establish or constitute an independent tribunal,” said Justice Moyo.
There is no way therefore, she said, that the Minister can, without the legislature having promulgated a law that provides for the establishment of an independent tribunal, suspend the councillors. “I accordingly grant the provisional order as sought,” ruled Justice Moyo.
The councillors, through their lawyers, Chitere Chidawanyika and Partners, accused Minister Kasukuwere of acting outside the law by appointing an independent tribunal to adjudicate their case, arguing that he had no right to assume the powers of Parliament.
In the court papers, the applicants cited Minister Kasukuwere, Midlands’ provincial administrator Cecilia Chitiyo, Luckson Chikumbirike, Goodwill Khosa and Nicholas Moyo as respondents.
Kombayi, in his founding affidavit, said Minister Kasukuwere’s decision to suspend them was unconstitutional. “I submit that once elected into office, a councillor can only be removed from office in terms of section 278 of the Constitution of Zimbabwe (Amendment Number 20). It is clear that an Act of Parliament must establish an independent tribunal to adjudicate over any allegations levelled against the councillors and mayor of any local authority which has a bearing on removal from office,” said Kombayi.
“It is evident that a material error of law has occurred in the discharge of first respondent’s (Minister Kasukuwere) duties or responsibilities.” Kombayi further contended that there was no legal basis for Chitiyo to press charges against the applicants. In their application, the councillors said the convening and sitting of the tribunal comprising Chikumbirike, Khosa and Moyo was an unlawful, wrongful and continuation of a violation of their rights.
Kombayi and his councillors’ suspension letters come against the backdrop of a two-week audit exercise of the city’s books by a government probe team. According to the letter signed by Minister Kasukuwere, Kombayi and his councillors are not eligible to receive any form of remuneration from council or conduct any council business within or outside council premises during the period of suspension.
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