Chief Justice to rule on Gono, Kereke feud

HARARE - Chief Justice Godfrey Chidyausiku is set to rule whether Munyaradzi Kereke,  former adviser to Reserve Bank of Zimbabwe governor, should be heard by the Constitutional Court after failing to file his arguments in time.

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

Gono’s lawyer Tendai Biti wrote a letter to the Constitutional Court seeking a declaration that Kereke had been barred from being heard after his failure to file court papers within the stipulated time.

According to Practice of Direction No.2 of 2013, Kereke was supposed to have filed his arguments on March 11 but failed to do so.

He was still yet to do so as of 1600 hours on March 12.

Consequently, Biti argued, he was now barred from filing his heads of argument in response to Gono’s, which means that the matter will have to be brought before Chidyausiku for directions in terms of the rules.

“The applicant is therefore barred and we urgently request that this matter be brought before the Chief Justice for directions,” Biti said.

Biti said Gono preferred to have the matter heard, despite the circumstances, given its importance to him and his family.

Gono asked the court to give Kereke more time.

“Suffice to state that our client’s preferred route is that the matter be argued before the court, even under circumstances where the applicant has been barred given the importance of this matter to him (Gono) and his family,” wrote Biti.

Walter Chikwana, the chief registrar, on Monday wrote a letter to Biti, advising him that the matter had been placed before Chidyausiku.

“He (Chidyausiku) has directed that the first respondent (Zacc) must file its heads of argument by the 31st of March 2014, before he issues further directions,” part of the letter reads.

In the Constitutional Court application, Kereke said the failure by Zacc to investigate allegations of abuse of office, corruption and theft was unconstitutional, adding the commission has an obligation to receive and consider complaints from the public.

Responding to the application, Gono said Kereke’s claims were baseless.

“The instant application is clearly one that is short on the law but long on heat, malice and verbiage,” Gono said.

He said for Kereke’s application to succeed, it must be established among other issues, whether the claim is justiciable or if the Constitutional Court has the jurisdiction to grant the remedy sought.

Kereke had approached the court to “seek an order that he himself finds untenable.”

He said Kereke’s application should fail on the basis that the application was “procedurally and substantially fatally defective; that purely on grounds of procedure, the application did not acquit itself properly in matters about how pleadings are prepared and drafted; and that the application called for scrutiny in respect of the objections in limine made by Gono “which go to the root of the instant matter”.

“The applicant, assuming he had correctly cited the Zimbabwe Anti-Corruption Commission seeks an order directing same to conduct investigations against the 2nd respondent,” Biti argues.

“However, half the applicant’s founding affidavit contains allegations that the 2nd respondent allegedly corrupted the commission.

“The allegations are so serious and unkind. Furthermore, they are persisted with, in the answering affidavit. In the face of these allegations, surely rules of natural justice will disallow the Commission from investigating the 2nd respondent.

“The basis of natural justice, is that justice must not only be done but must be seen to be done. Put differently, this honourable Court is being asked to give a determination which any outsider, including the applicant himself, may actually take on review on the basis of bias,” he said.

Biti argues that Kereke’s case should fail under the principle of avoidance.

“Contrary to the applicant’s forceful, if misguided, averments in his affidavits, not every matter that raises a constitutional issue shall be heard as a constitutional case,” said Gono, who also argued that Kereke had approached the court without exhausting other judicial processes.

“Directly related to the foregoing, the application should fail because the applicant has not, as a matter of law, exhausted all available ordinary remedies before approaching the Constitutional Court.”

“An incident of the principle of avoidance, the doctrine of ripeness, bars a party from asserting a constitutional issue in criminal or civil proceedings where other non-constitutional remedies are available,” he said.

Gono alleged that Kereke’s suit was motivated by malice.

“The evidence of subjective malice is clearly shown by the fact that the applicant goes to town in producing and making serious defamatory attacks against the 1st and 2nd respondents when it was totally unnecessarily to do so.

“If the complaint was that the Zimbabwe Anti-Corruption Commission had not investigated, then that is the simple allegation that should have been made and then an order sought to compel. The applicant knew that this matter would attract public interest and went ahead to produce the massive body of evidence he has produced in casu all in order to tarnish the image of the respondents,” he said.

Gono said Kereke was approaching the court with dirty hands, basing his allegations on malice, adding that the former advisor had flouted his conditions of service, including the bank’s code of conduct.

Comments (2)

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So Tendai Biti is Gono's lawyer? Oh! but the Zimbabwe circus goes on full swing.

John o - 3 April 2014

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