Zimbabwe’s High court Judge Justice Mary-Zimba Dube on Tuesday reserved judgement after presiding over the hearing of an urgent chamber application filed by Harare Mayor Bernard Manyenyeni seeking an order setting aside his suspension by Local government minister Saviour Kasukuwere.
Manyenyeni, a member of the opposition MDC party, cited Kasukuwere and Attorney-General Advocate Prince Machaya as respondents.
Justice Dube reserved ruling after hearing arguments from lawyers representing Kasukuwere, who opposed the urgent chamber application and those representing Manyenyeni namely David Hofisi and Dzimbabwe Chimbga of the Zimbabwe Lawyers for Human Rights (ZLHR), who argued in court that Kasukuwere breached the country’s constitution by suspending Manyenyeni and thus interfering with the running of council affairs.
Kasukuwere on 20th April suspended Manyenyeni from serving as Mayor of the capital city and councilor and justified that he had done so in terms of Section 114 (1) (d) (ii) of the Urban Councils Act [Chapter 29:15]. In suspending Manyenyeni, Kasukuwere indicated that he and some City of Harare Councillors had acted unlawfully and defied his directive ordering them not to approve the appointment of banker James Mushore to the position of Town Clerk.
Read Kasukuwere’s letter, “”The grounds for your suspension are that you have, without legal basis, made an employment offer to a person for the position of town clerk without the necessary approval of the local government board as required by the Urban Councils Act, as read with section 265 (1) (b) of the constitution of Zimbabwe…You will be brought before a competent authority to answer the allegations above. During the period, you shall not receive any allowance and you shall not carry out any council business within or outside council.”
This prompted Manyenyeni to engage his lawyers to file an urgent chamber application on 21st April challenging Kasukuwere’s decision as unlawful and unconstitutional on the basis that he has no such powers in terms of the constitution and as has been previously held by the High Court in the cases of suspended Gweru mayor Hamutendi Kombayi, who had also been suspended by Kasukuwere. Kasukuwere has since appealed to the Supreme Court challenging the Gweru High Court ruling.
In court, Hofisi and Chimbga argued that in terms of the constitution, the removal of mayors, councilors and chairpersons is done by an independent tribunal in terms of an Act of Parliament and there is neither that Act of Parliament nor an Independent Tribunal hence Kasukuwere has thus "arrogated to himself powers he no longer has to suspend Manyenyeni."
To buttress his case, Manyenyeni also cited Section 2 of the constitution which states that the constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.
Zimbabweans have become disillusioned due to the lack of government's progress on the alignment of laws with the 2013 constitution.
Manyenyeni, Hofisi and Chimbga argued, is suffering harm and prejudice as he has been suspended from office without lawful cause.
Apart from his suspension from office, Minister Kasukuwere also suspended payment of his allowances and is not permitted to conduct any council business.
The human rights lawyers asked Justice Dube to order Kasukuwere to refrain from suspending, dismissing or engaging in any other activity with a view to removing Councilor Manyenyeni from the office of Mayor of Harare.
The impasse has resulted in the cash strapped Harare city council operating with two town clerks- Manyenyeni and chamber secretary Josephine Ncube, appointed by Kasukuwere on an acting capacity.
MDC spokesman Douglas Mwonzora told VOA Studio 7 that Kasukuwere wants to make a “political appointment” and he hoped the High Court will rule in favor of Manyenyeni. Kasukuwere is a member of the ruling Zanu-PF party.