'Kereke out to settle personal grudges'

HARARE - Former Reserve Bank of Zimbabwe (RBZ) governor Gideon Gono has said his ex-adviser Munyaradzi Kereke is basing corruption claims against him on false allegations driven by malice and a desire to settle personal grudges.

Kereke filed a Constitutional Court application, seeking to push the Zimbabwe Anti-Corruption Commission (Zacc) to investigate Gono on graft charges, allegedly committed during the time he was at the helm of the central bank.

Gono, who is cited as a second respondent in the application, has said in his heads of argument that Kereke’s claims were baseless. Below are Gono’s arguments.

1. The instant application, is clearly one that is short on the law but long on heat, malice and verbiage.

The kind of litigation that reminds one of the infamous case of Jarndyce v. Jarndyce in Charles Dickens’s Bleak House.

The kind that would lead the late Justice Robinson to state in Chiviya vs. Chiviya 1995 (1) ZLR 210(H) that, “Surprises certainly abound for one on the Bench” to which George Elliot, having read the application might say, “Blessed is the man who, having nothing to say (or complain of), abstains from wordy evidence of the fact”.

2. In casu, the applicant seeks an order by the Constitutional Court declaring that:-

a) The 1st respondent has failed to investigate the applicant’s complaint of alleged acts of corruption and irregular conduct by the 2nd respondent. (The applicant however, does not specifically plead this aspect. It is implied in the applicant’s prayer below.);

b) The failure by the 1st respondent to investigate the applicant’s complaint, which complaint the applicant alleges, falls within the Constitutional Court’s mandate, is a wilful violation of the Constitution;

c) As a result, the Constitutional Court declares that the applicant has been denied the protection of the law, and consequently;

d) The Constitutional Court issues an order directing the 1st respondent to commence, within 30 days, an investigation into the complaint raised by the applicant against the 2nd respondent.

Defining the issues

3. For the present application to succeed, the applicant must establish the following cumulative elements:

a) That the bill of rights is engaged in this application;

b) That the issue is justiciable;

c) That he (the applicant) has a standing, and;

d) That Constitutional Court has the jurisdiction to grant the remedy sought.

4. In addition to these procedural requirements, substantively, the court must consider, by reference to the facts and to the interpretation of the Bill of Rights, whether a right has been violated.

If it so finds, whether such violation is a justifiable limitation of the right, and if not, whether the relief sought is the appropriate remedy.

Specifically, the applicant must elucidate sufficient facts to prove that the 1st Respondent has indeed failed to act on applicant’s complaint against the 2nd respondent and that such failure has denied him, or any other interested party he purports to represent, the protection of the law as guaranteed in the Constitution.

5. It is important to reiterate that the foregoing elements are cumulative and that failure to satisfy any one of them is fatal to the case. It is equally important to highlight that the applicant bears the onus to establish all these elements and that burden must be discharged in the applicant’s founding affidavit and supporting documents.

Structural organisation of these heads

6. The applicant submits that the instant application is so procedural and substantially fatally defective that it should be dismissed with costs calculated on a scale as between attorney and client.

7. Purely on grounds of procedure, the application does not acquit itself and raises important matters about how pleadings are prepared and drafted, the role of a legal practitioner and the purpose of pleadings in particular the founding affidavit and the answering affidavit.

These procedural issues will be dealt with in extenso.

8. The application, also, invites scrutiny in respect of the objections in limine that have been made by the 2nd Respondent which go to the root of the instant matter.

9.  The 2nd respondent thus proposes to deal with this matter in the following manner:-

a) Objections that go to the root of the application;

b) Procedural irregularities;

c) The merits of the matter.

10. In respect of those objections that go to the root of the matter and that are incurable, these heads will address the following issues:-

i) The failure by the applicant to cite the Anti-Corruption Commission;

ii) The failure by the applicant to cite the Reserve Bank of Zimbabwe;

iii) The contention that the relief sought in the application will be absurd and ineffective on the logic of the applicant’s own case;

iv) The submission that the application violates the “avoidance” principle;

v) The submission that the application is premature and violates the doctrine of ripeness;

vi) The submission that applicant comes to court with “dirty hands”;

vii) The submission that 2nd respondent is entitled to the protection of the law in the circumstances of this case.

11. On the facts of case, the 2nd respondent raises two main arguments, which it is submitted are also individually fatal to the application. The 2nd respondent argues that:

a) The applicant fails to establish facts to prove that the 1st respondent has been derelict of its duties, which should compel this honourable court to intervene; and

b) The evidence on the record objectively shows that, contrary to the applicant’s allegations, the 1st respondent’s commission has acted in keeping with its constitutional mandate in this matter.

12. For these reasons, the 2nd respondent will pray that the present application be dismissed with an order for punitive costs.

Objections that go to the root of the matter

a) Failure to cite the Commission

13. The present application must fail for failure to cite the correct party.

The applicant, does to cite the commission. The Zimbabwe Anti-Corruption Commission, and not its chairman is the constitutional body charged with, among other things, the investigation of acts or alleged acts of corruption.

The chairman of the commission is however, not a legal persona for the purposes of Chapter 13, Part 1, of the Constitution.

14. Section 254(1) creates a commission to be known as the Zimbabwe Anti-Corruption Commission.

In terms of that provision, the chairperson of the commission is merely one of the constituent members of the commission appointed by the president.

a) The president also appoints eight other members.

b) Collectively, these members then constitute the commission as the legal persona charged with the constitutional duties in Section 255. Neither member — not even the chairperson — has independent legal persona. All members – qua individual — are mere functionaries.

They bear no individual responsibility on behalf of the commission. Not even the chairperson.

15. It is therefore both legally and factually inaccurate to say that, “(t)he first respondent is the juristic creature of the Constitution under Chapter 13, Section 254, mandated with the responsibility of investigating and exposing cases of corruption in the public and private sectors, as well as initiating prosecutions of perpetrators of the cancer of corruption in Zimbabwe.”(3)

16. The apparent conflation of the office of the Zimbabwe Anti-Corruption Commission with that of the chairman of the commission is thus fatal.

The situation would have been different if the chairman had been cited nomine officio.

In this case, the applicant however, purposely, if erroneously, cited the chairman of the Zimbabwe Anti-Corruption Commission as the constitutional body charged with exposing and investigating corruption.

That defect is incurable and fatal to the applicant’s case.

The position that failure to cite the correct party in civil proceedings is fatal to the applicant’s case is well-entrenched in our jurisprudence, it need not be belaboured.

See-

Savanhu v Postmaster General 1992 (2) ZLR 455(H)
Sibanda v Postmaster General H-H263-90 (unreported)
JDM Agro-Consult & Marketing (Pvt) Ltd v Editor, The Herald & Anor. 2007 (2) ZLR 71 (H)
Mhanyami Fishing & Transport Co-op Soc. Ltd & Ors. v Director-General Parks & Wildlife Management Authority & Ors. 2011 (1) ZLR 555
Matida v Chairman, PSC & Another 1998(1) ZLR 507 (H)

To be continued

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