Back to Index

AG's arrest was illegal: lawyers
Caiphas Chimhete, The Standard (Zimbabwe)
November 11, 2007

Attorney-General Sobusa Gula-Ndebele's arrest last week on allegations of conduct contrary to the duties of a public officer was unconstitutional, leading constitutional law experts have said. Gula-Ndebele is accused of secretly meeting former NMB Bank deputy managing director, James Mushore, who was on the police wanted list for allegedly externalizing foreign currency. The police last week charged Gula-Ndebele with contravening section 174 (1) (a) of the Criminal Law (Codification and Reform) Act, which deals with the conduct of public officers. Mushore fled the country to the UK in 2004, where he had been living until his return and subsequent arrest. Police spokesperson Wayne Bvudzijena could not be reached for comment yesterday, but constitutional law experts pointed out the AG's arrest was improper. Constitutional lawyer Lovemore Madhuku described the arrest as "unconstitutional, unprocedural and unthinkable" in any democratic country.

Madhuku, a University of Zimbabwe law lecturer, said the Constitution of Zimbabwe grants the AG the exclusive power to determine whether or not to prosecute any person. "If it were true that the AG met Mushore and made the alleged assurance it would be unconstitutional to arrest him because doing so would be usurping his powers to determine prosecution," he said. Madhuku said the correct procedure when police believe the AG has committed a crime would be to institute proceedings for his removal from office through the President, before arresting him. What happened, he said, was "unthinkable" in a properly functioning democracy. "Unfortunately, Zimbabwe is not one," he said. Madhuku added: "If the AG meets someone over a drink in a restaurant and the next day he is in police custody what concept of independence is that?"

Another constitutional law guru, who asked not to be named, said what the police did was tantamount to trying to influence the way the Attorney-General carries out his official duties, which is unconstitutional. The police failed to do their homework, he said, or it might have been deliberate malice to harass him "to settle whatever old scores there might be", he said. The Constitution of Zimbabwe states that the AG shall not be under the authority of any person in the performance of his duties and that no person shall be able to issue instructions on the exercise of his functions. Section 76 (7) of the Constitution says: "In the exercise of his powers under subsection (4) or 4 (a), the Attorney-General shall not be subject to the direction or control of any person or authority." The law expert said if the police felt that the AG had committed a crime, the Commissioner of Police was supposed to approach the President, who would appoint a tribunal, composed of lawyers and reputable civic leaders. The tribunal would investigate and make recommendations. "If there is a prima facie case, the President would then give the green-light by suspending the AG. After that the police can arrest him because he will no longer be in the office," he said.

Another constitutional expert, Welshman Ncube, who is representing Gula-Ndebele, yesterday refused to comment. "I am representing Gula-Ndebele, so it would be very inappropriate for me to comment at the moment," Ncube said. The Minister of Justice, Legal and Parliamentary Affairs Patrick Chinamasa, who has on several occasions clashed with Gula-Ndebele, said he could not comment as he was still mourning the death of his son who died in the United States two weeks ago. Gula-Ndebele sanctioned the prosecution of Chinamasa, accused of trying to obstruct the course of justice in a case involving the Minister of State for Security, Lands and Land Resettlement, Didymus Mutasa. But Chinamasa was acquitted. The Minister of Rural Housing and Social Amenities, Emmerson Mnangagwa, the acting Minister of Justice, could not be reached for comment. Gula-Ndebele's arrest has taken a political dimension, with some analysts saying it was designed to curb the influence of General Solomon Mujuru's faction, to which Gula-Ndebele is reported to belong.

Please credit www.kubatana.net if you make use of material from this website. This work is licensed under a Creative Commons License unless stated otherwise.

TOP