THE Constitutional Court (Con-Court) has thrown out, with costs, an application by a Harare man Simbarashe Zuze who had challenged President Emmerson Mnangagwa’s appointment of Kumbirai Hodzi as the country’s substantive prosecutor general.
“It is ordered that: the request for an interim case management order, having been deemed abandoned in terms of Section 9 (6) of the rules of this court, is struck off the roll with costs,” the Con-Court ruled yesterday.
Zuze had filed a Con-Court application arguing Hodzi scored badly in the public interviews held by the JSC last year.
In the application, he cited Mnangagwa, the JSC, Chief Justice Luke Malaba, Justice minister Ziyambi Ziyambi and Hodzi, as respondents.
However, Judicial Service Commission (JSC) acting secretary Walter Chikwana had responded to the application, defending the president’s decision. He said the president has a discretion to choose his preferred candidate.
“Section 180 gives the president the discretion to appoint a candidate of his choice to the office of Prosecutor-General. Where, in his discretion, the president considers that none of the persons on the list submitted to him by the JSC are suitable for appointment, Section 180 (5) of the Constitution allows the president to request the JSC to submit a further list of three qualified persons to him from which the president is obliged to appoint one of the nominees on the second list to the office of Prosecutor General,” he said.
Chikwana said the method of “scoring” candidates during public interviews is not prescribed by the Constitution, but a JSC initiative created for considerations before preparing a list for submission to the president.
“How candidates are ranked in the public interviews is by no means the only consideration taken into account by the JSC when preparing a list of qualified persons.
“In making recommendations for appointment, the JSC is conceivably not limited to the ‘score sheets’ but would also take into consideration other attributes such as the personality, temperament, diligence of the candidates as well as the need for gender and regional balance,” he said.
He further said Zuze has no locus standi to pursue the current proceedings.
“There is no proof on record that the applicant is an adult, let alone a Zimbabwean citizen.
“The applicant is put to the strictest proof of these issues and he should provide a copy of his national identity card.
“Without establishing that he is an adult Zimbabwean, the applicant has no locus standi to approach the court in the present proceedings and the application should fail on this basis alone,” Chikwana said, adding the citation of JSC chairperson and Malaba was misplaced and bad at law.
However, in his application, Zuze, who is represented by Thabani Mpofu, said Mnangagwa had denied the top three candidates for personal reasons, opting for Hodzi who had dismally performed in the interviews.
He further said it cannot be ignored that during interviews, Hodzi made it clear that he takes orders from the executive, which is a threat to prosecutorial independence.