Back to Index

Harare commission illegal?
Zhean Gwaze,The Financial Gazette (Zimbabwe)
October 20, 2005

THE future of the Sekesai Makwavarara-led commission was left hanging by a thread yesterday after High Court Judge Rita Makarau ruled in another case that the extension of a commission's mandate beyond six months is illegal.

Legal experts said the ruling set a precedent for all such commissions including the one headed by Makwavarara, which has been in office for the past 10 months.

In a case between former director of works Christopher Magwenzi-Zvobgo versus the Harare City Council (HCC) and commissioner Dominic Muzawazi, Justice Makarau said the extension of the Elijah Chanakira commission's term beyond six months as promulgated in the Urban and Councils Act was invalid.

A team led by the former diplomat came into Town House in March 1999 after the government dismissed the entire council headed by the late first executive mayor, Solomon Tawengwa of ZANU PF.

Because of its illegality, the court declared null and void the proceedings of a special committee set up by the Chanakira commission in October 1999 to inquire into alleged acts of misconduct by Zvobgo. She said the committee came into being after the expiry of the commission's six-month lifespan.

The local government ministry has twice bulldozed its way into the affairs of HCC and imposed commissions whose terms of office have been extended indefinitely.

After appointing the Chanakira-led commission in 1999, the ministry came back to haunt opposition Movement for Democratic Change executive mayor Elias Mudzuri, who has since been replaced by the ZANU PF-aligned commission headed by political turncoat Makwavarara.

Local Government Minister Ignatius Chombo mandated the Makwavarara commission to run the affairs of Harare for 24 months.

Harare lawyer Tendai Biti, representing HCC in the matter, said the ruling by Makarau should set a precedent for other commissions.

In the case between Zvobgo and the HCC, Makarau argued that there had been no changes to the Constitution of Zimbabwe with regards the Urban Councils Act and as a result the Act remains "valid and in force."

"A Commission was allowed to remain in office past its legal mandate, thereby creating the fictional vacuum. It is my view that to legitimise the clearly illegal in the circumstances of this matter would be to offend against the clear letter of the law as contained in the Urban Councils Act and to usurp the functions of Parliament and to seek to legislate from the bench by excusing which parliament has decreed illegal," Makarau said.

Under the Act, a commission's tenure of office is stipulated for six months after which succeeding general elections are held.

If the six-month period expires without such elections, the minister may reappoint the commission or the commission will push for the holding of an election.

"While it is conceded that the illegal commission transacted business for and on behalf of the City of Harare under the genuine but mistaken belief that it had a lawful mandate to do so, the mistaken belief on the part of the commissioners is in my view no basis in law for this court to usurp the functions of parliament and validate that which Parliament has expressly decreed to be illegal," Makarau said.

Justices Wilson Sandura and Hungwe have in previous cases also ruled that Chombo cannot lawfully reappoint commissioners for an indefinite period.

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