Source: ZACC’s bid to block use of passport fails | The Herald
Fidelis Munyoro-Chief Court Reporter
Former Cottco top executive Maxmore Njanji can still use his passport for a business trip after an attempt by the Zimbabwe Anti-Corruption Commission (ZACC) to block the release of the document temporarily as a modification of his bail conditions failed at the High Court yesterday.
ZACC was told by the High Court that it does not supervise other Constitutional bodies and while all those fighting crime needed to co-operate, many of the bodies were independent for good reason and so could not be ordered around.
Njanji is facing fraud charges involving US$5,8 million in a suspected high-profile corruption case.
He is out on bail and his passport was held by the clerk of court as a condition of bail. However, he successfully applied to have it back to make his business trip. ZACC now objects.
The ZACC case hit a snag after Justice David Mangota struck the matter off the roll because it was defective and bad at law.
ZACC had sued court officials including magistrates, the Judicial Service Commission (JSC), National Prosecuting Authority (NPA) and acting Prosecutor-General Nelson Mutsonziwa, after bail conditions of Njanji were altered under unclear circumstances.
Also listed as respondents in the lawsuit were the clerk of court, magistrates Taurai Manuwere and Marehwanazvo Gofa, senior regional magistrate Ngoni Nduna and chief magistrate Faith Mushure.
Through its executive secretary Ms Sukai Tongogara, Zacc wanted to be furnished with a September 21 record of court proceedings that led to the release of Njanji’s passport and that the travel document remains in the clerk of court’s custody until the criminal case he is facing is finalised.
But Justice Mangota agreed with legal counsel of the respondents that Zacc has no legal basis to supervise the respondents.
He said the Constitution, under which Zacc operates, does not confer upon it any supervisory role over the clerk of court, NPA and the Prosecutor-General.
“The respondents are, therefore, within their rights when they insist on the point that the applicant does not have the requisite locus standi (the legal right) to sue them as it did,” said Justice Mangota.
“Their statement on the mentioned point is valid and is, therefore, with merit.”
Njanji had successfully applied for temporary release of his passport to enable him to travel outside Zimbabwe on a business trip.
But Justice Mangota found Zacc’s reaction to the newspaper’s articles unfortunate, saying it busied itself on nothing and invited the judge to “walk with it on a matter which was completely devoid of any substance”.
“Its appetite to want to encroach on to the work and functions of such statutory bodies . . . who, like itself, owe their existence to, and draw their power from, the Constitution as read with their respective enabling legislations, cannot be condoned let alone accepted,” he said.
“Each of them is guaranteed, by the Constitution, the liberty to perform its work independently of the others so that none of these four bodies is allowed to step onto the toes of the other or others. Yet they must co-operate, one with the other, for the proper administration of justice in Zimbabwe.
“In their co-operation, which is not a matter of law but policy, none of them should exercise an oversight role over the other or others unless the law from which it draws its power allows it to do so.”
ZACC and the institutions it was suing all fall under the judiciary arm of the State and they work under the general administration of the JSC which is itself a constitutionally established body. They are not, in terms of the law, subject to the control or direction of anyone in the discharge of their judicial functions.
They do not answer to (ZACC) and, save in a few instances which relate to their conditions of service or some misdemeanour’s on their part wherein the sixth respondent has some role to play, they work independently of all independent commissions, ZACC included.
In this regard, Justice Mangota said all these institutions are “a stand-alone group of persons”., who are their own masters, adding that they are not subject to the direction or control of either the Executive or the Legislative arm of the State.
“This application is everything which an urgent matter should not be. It stands on nothing,” said Justice Mangota adding, “It appears to have been filed as a way of having (ZACC) showing its intention to impose itself on other constitutionally established bodies. Those stood their ground, correctly in my view, and made sure that it backs off.
In the application, Ms Tongogara said ZACC’s urgent chamber application was motivated by its Constitutional mandate to secure the arrest and conviction of all persons suspected of corruption, abuse of power and other improper conduct which falls within its jurisdiction.
ZACC said it was supposed to be notified of any applications that might seek to vary bail conditions of accused persons whom it would have investigated for offences relating to corruption. Ms Tongogara said Njanji’s bail conditions should never have been varied as that would jeopardise investigations.
Njanji is being charged alongside Gokwe-Nembudziya legislator Mayor Wadyajena and Cottco executives Pious Manamike, Fortunate Molai and Chiedza Danha director for Pierpont Moncroix Mauritius. They are on $200 000 bail each.
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