via Ministry defies court order | The Herald October 6, 2015
The Ministry of Local Government Public Works and National Housing has defied a court order compelling it to immediately reinstate suspended Gweru mayor Hamutendi Kombayi and 10 other councillors.
The ministry’s permanent secretary Engineer George Mlilo yesterday said the 11 remain on suspension while conceding that a tribunal set up by Minister Saviour Kasukuwere ceases proceedings pending the outcome of the final court order.
Bulawayo High Court judge Justice Nokuthula Moyo last week ordered Cde Kasukuwere to immediately reinstate the suspended 11.
The basis of the ruling was that the section of the Urban Councils Act, which was used to suspend the Gweru city fathers contravened the Constitution.
Justice Moyo said section 114 of the Urban Councils Act, which the Minister used to suspend the councillors and appointing a tribunal was inconsistent with section 278 of the Constitution.
The ruling followed an urgent chamber application filed by the 11 councillors who sought an order declaring their suspension null and void.
Minister Kasukuwere in August indefinitely suspended Kombayi, his deputy Artwell Manyorauta and other councillors on allegations of gross misconduct, incompetence and mismanagement of council funds and affairs.
Addressing a press conference yesterday, Eng Mlilo said the caretaker council put in place by Cde Kasukuwere also remains operational in the absence of the councillors. “On October 1 2015, the honourable judge Justice Moyo granted the provisional order which the applicant, Hamutendi Kombayi and others sought. The provisional order granted is to the effect that the proceedings of the tribunal are to be stopped until the matter of the constitutionality of setting up a tribunal is finalised by the court,” he said.
“The proceedings of the tribunal should be stayed pending the outcome of the final order by the court. The councillors, Hamutendi Kombayi and all the suspended remain on suspension. The caretaker council put in place by Honourable Minister (Cde Kasukuwere) remains operative in the absence of councillors,” said Eng Mlilo.
In granting the application, Justice Moyo said section 114 of the Urban Councils Act vests all powers to suspend and dismiss councillors in the Minister of Local Government who is the first respondent.
“However, section 278 of the Constitution on the other hand gives an impression that the Constitution has taken away the powers that the Minister had in terms of section 114 of the Urban Councils Act and vested the same in an independent tribunal, which should be established through an Act of Parliament,” said Justice Moyo in the order.
She said the Constitution is the supreme law of the land and any law or Act which is inconsistent with it has no force or effect.
“The Constitution thus speaks for itself, any act or practice which is inconsistent with its provisions is invalid to the extent of the inconsistency. It stipulates that the obligation imposed by it are binding on everyone and must be fulfilled by all including the first respondent as Minister of Local Government,” said Justice Moyo.
She said the section 278 of the Constitution provides for the establishment of an independent tribunal to exercise the function of removing from office: mayors, council chairpersons and councillors and does not vest any authority to remove councillors in the minister anymore and neither does it grant him powers to establish or constitute an independent tribunal.