SUPREME Court judge Justice Wilson Sandura, breaking ranks with four other judges in a high-profile case, says President Robert Mugabe erred when he delegated his power of selecting members of a
tribunal set up last year to probe High Court judge Benjamin Paradza for alleged misbehaviour.
Justice Sandura opposed four other judges, Chief Justice Godfrey Chidyausiku, Justice Vernanda Ziyambi, Elizabeth Gwaunza and Luke Malaba, who found that the three members of the tribunal were selected by the president as required by Section 87(4) of the constitution.
Paradza had appealed to the Supreme Court to have the tribunal disbanded, as it was not constituted in compliance with the constitution. He had cited the three members of the tribunal, Dennis Kamoni Chirwa from Zambia, John Mroso from Tanzania and Isaac Mtambo from Malawi as first, second and third respondents respectively.
Justice minister Patrick Chinamasa and President Mugabe were cited as fourth and fifth respondents respectively.
Justice Sandura said the president should have personally appointed the three members of the tribunal instead of delegating that task to Chinamasa.
He said the three members of the tribunal were not selected by the president as required by Section 87(4) of the constitution, but were selected by the Chief Justices of Zambia, Tanzania and Malawi respectively, who had no power to do so in terms of the Zimbabwean constitution.
“In the circumstances, bearing in mind the fact that in terms of Section 87(4) of the constitution, the tribunal should consist of not less than three members, one of whom should be designated by the president as chairman, the fact that each of the three Chief Justices was requested to nominate only one of his judges to be a member of the tribunal is clear beyond doubt that the selections made by the three Chief Justices were intended by the president to conclusively determine the three members of the tribunal,” Sandura said.
“This was an impermissible delegation of the president’s power of selecting the members of the tribunal,” Sandura said.
He said the tribunal was not, therefore, constituted in compliance with the constitution.
“The selection of the tribunal comprising the first, second and third respondents was unconstitutional,” he said.
Paradza had argued that the tribunal was unconstitutional and that the person leading evidence before the tribunal was not an independent practitioner selected by the tribunal itself but a person who Chinamasa designated to assist the tribunal with the state’s position. Paradza argued that the person acted adversarially and had displayed partisan conduct.
Justice Sandura said the constitution did not provide for the participation of such an official in the proceedings of the tribunal. The tribunal is supposed to be a wholly impartial body whose function is set out in s 87(6) of the constitution.
The role of the person leading evidence before the tribunal is not to assist the tribunal with the state’s position, because the state does not have a position in such an inquiry, but to assist the tribunal by selecting the evidence to be placed before the tribunal and by calling witnesses and examining them, Sandura said.
“An inquiry held in terms of Section 87 of the constitution is not a criminal offence in which the state alleges that an accused person is guilty of the offence with which he is charged,” he said.
The charges against Paradza arose after he allegedly phoned a Bulawayo High Court judge asking him to release the passport of his friend and business partner, Russell Labuschagne.
Labuschagne, who is serving a 15-year jail term for the murder of a fisherman two years ago, was being held in remand prison awaiting trial. The authorities had seized his passport and other documents so he could not abscond.
Paradza was arrested in his chambers in 2003 and charged with attempting to defeat the course of justice.