Violet Gonda: Retired High Court Judge, Justice Leslie George Smith is
my guest on the Hot Seat programme. Justice Smith worked in the
Attorney General's office as a Solicitor General in the Ian Smith
government, and then was secretary to the Prime Minister during the
Abel Muzorewa era. He then went on to advise Robert Mugabe during the
transition and later became a High Court judge. How are you, Justice
Smith?
Leslie George Smith: I'm very well thank you.
Gonda: Let's start with this issue of the procedures in the public
service; there is this squabble over the appointments of permanent
secretaries in the new inclusive government and I guess there must be a
clear system that exists in regards to how the public service actually
works. Now as a former senior civil servant can you first of all tell
us how Permanent Secretaries are appointed?
Smith: Well in the publics the constitution provides that there shall
be a public service for the administration of the country and then
establishes a Public Service Commission which is responsible for doing
things in connection with the public service, in other words,
overseeing the conditions of service, salaries and everything like that
for members of the public service. So all appointments, termination of
office are done by the Public Service Commission with the exception of
Secretaries and Ministries. Now Section 77 of our Constitution provides
that the power to appoint persons to hold the office of Secretary to
the Cabinet or Secretary of a Ministry shall rest in the President
after consultation with the Public Service Commission. So in other
words, all appointments to the public service are made by the
Commission with the exception of Permanent Secretaries which the
President makes after consultation with the Public Service Commission.
Gonda: So are they political appointees even though they are civil servants that will be appointed to these Ministries?
Smith: Yes they are political appointments. All appointments other than
to the position of Secretary are made by the Public Service Commission
and they would do it on merit and seniority and service and all that
sort of thing. But this power of the President, he can appoint any
person that he wants as Secretary to the Cabinet or Secretary to the
Ministry, all he has to do is consult with the Public Service
Commission. If the Commission is not consistent with the recommendation
made by the Public Service Commission, then he causes parliament to be
informed, but I mean all he has to do is inform parliament; parliament
can't set aside the appointment or anything like that.
Gonda: As you know, Robert Mugabe did go ahead and he announced the new
Permanent Secretaries and they are all from Zanu-PF and basically the
two MDC leaders, Morgan Tsvangirai and Arthur Mutambara were not happy
about that, they held a press conference this week where they said that
this is a breach of the constitutional amendment 19 which they say
demands that the President can only make senior appointments after
consultations with the two deputies and Prime Minister. Now can you
comment on the MDCs' position?
Smith: Well I think if the parties did enter into an agreement that
appointments by the President would only be made in consultation and
association with the other two parties so it does seem as if he is
breaching the agreement that was entered into with those two parties.
Gonda: But if we are to go with what you are saying that Mugabe has a
right to make these appointments, in terms of procedure, is he right?
Smith: Well I think, legally speaking, as long as he did consult with
the Public Service Commission, and I can't say whether or not he's done
that, but if there was full consultation with the Public Service
Commission then the appointments would be legally in order.
Gonda: Is it fair that the procedure should remain the same in an environment where the civil service has been politicised?
Smith: Well I would say that if you've got an inclusive government
where you've got the three parties then they should also be involved in
the appointment of Permanent Secretaries because it is obviously very
important to an incoming Minister who his Permanent Secretary would be,
and the problem with a lot of these ministries is going to be that
there is a new minister and two days after his swearing in as a
Minister, there's a new Permanent Secretary so you've got two
completely new people at the head of the ministry.
Gonda: What happened during the transition?
Smith: Well it was only at the Lancaster House, and constitution, that
provided that the appointments of Permanent Secretaries would be made
by the Prime Minister then as it was, and now the President. At the
time of, under the Ian Smith government and the Muzorewa government,
the Public Service Commission or the Public Service Board as it then
was, was responsible for all appointments in the public service
including heads of ministries. So that's why, when Bishop Muzorewa
became Prime Minister, all the Permanent Secretaries continued in
office; similarly when Mr Mugabe became Prime Minister, all the people
in office, including the Permanent Secretaries continued and I was
amongst them at the time, when all the heads of ministries went to Mr
Mugabe as Prime Minister and said that we will continue to serve the
government of the country as we have done in the past. And then it was
only after Mr Mugabe became Prime Minister and then President that he
took over powers to appoint Permanent Secretaries.
Gonda: So he had…
Smith: Before that, it couldn't be done.
Gonda: Before that, it couldn't be done? That is basically what I
wanted to find out because I'd also heard that in the independence
transition, people were understudied and then upon winning the
election, Mugabe signed an executive order to allow the appointments of
Permanent Secretaries from people that were actually from his party.
Smith: Well it was only after his appointment that he was able to
appoint people from his party. What he started was at Deputy Secretary
etc – Under Secretaries and Deputy Secretaries and then it was as the
Permanent Secretaries resigned or retired, that the posts were filled
by the then Prime Minister.
Gonda: So with the situation now and what has already been done, can
these appointments be reversed, in other words is there any remedy to
the situation?
Smith: Well it's difficult to see – if the President did consult with
the Public Service Commission, then the appointment would have been
done in terms of the constitution, it would be difficult to see how
that could be set aside legally. And the MDC might well, the problem
they would have is if the President said well those appointments were
validly made, they would then have to try to bring a case in court
saying because there was no consultation, their approval wasn't
obtained then the appointments must be set away and I can't see our
present judiciary agreeing with that sort of argument.
Gonda: When you say that you can't see how the present judiciary would agree with that argument, can you elaborate on that?
Smith: Well I think they would have to – you know to expect them to do
that would be, to accept an argument which there's no legal precedent
for.
Gonda: So if you were to mediate this particular impasse what would
your position be or advice be to mediate the differences between the
three principals?
Smith:(chuckles) That's very difficult to say because obviously, you
can understand why the MDC leaders would want to have a say in who the
Permanent Secretaries are because in a good civil service you know you
shouldn't have political appointments especially at that level, and if
you are coming on as a Minister and if you've got a Permanent Secretary
who is a member of another political party and doesn't agree with what
you are trying to do it's going to be very difficult to run that
ministry. And I think that is why obviously the two MDC people wanted
to have a say in the appointment of Permanent Secretaries.
Gonda:
Do you think to some extent that the two MDCs could have, in the
last few years, found a way of getting their own people also rise
through the ranks in the civil service?
Smith: I don't see how they would ever have been able to get people
they wanted appointed in the civil service, all they could have done is
to approach people already in the service to see if they would be
prepared to adopt the policies of the MDC . But that would have had to
be purely done unofficially.
Gonda: And what about the issue of Ambassadors – is this only to do
with Permanent Secretaries or also the Ambassadors where Mugabe has
full authority to appoint whoever he wants?
Smith: Yes he has full authority to appoint whoever he wants because they are representatives of the country and his party.
Gonda: And where will the two MDCs come in here?
Smith: Well I think there would be even bigger problems as far as the
diplomatic purse is concerned because that is purely a presidential
prerogative to appoint and demote Ambassadors.
Gonda: This sounds all so confusing, I don't even know what to say
because it seems like it's a lose/lose situation for the two MDCs
because it appears that – if we go with what you are saying – that
Mugabe has total power, and the Prime Minister Morgan Tsvangirai does
not have much.
Smith: Obviously I think that is why they wanted that as part of that
agreement. And it would appear that the President and Zanu-PF accepted
that they would do that.
Gonda: Is what's happening because Morgan Tsvangirai does not have
executive powers and is it possible for the two leaders to actually
share executive powers?
Smith: Well that can only be done on the basis of goodwill you see
because the thing is that our constitution provided for the President
and these were his powers – and with this interim arrangement,
constitutions merely provide to say that there could be a Prime
Minister and two Deputy Prime Ministers but no specific functions were
given to the Prime Minister or the Deputy Prime Ministers and I think
this is one of the problems.
Gonda: Let's move on to another subject and I would like to get your
views as a person who has worked on the bench, what are your views on
the issue of the detention of MDC and civic activists like Roy Bennett
and Jestina Mukoko and do you consider them as political detainees?
Smith: Well you know, with my legal background, it's very difficult for
me, I couldn't answer a question like that because unless you know what
the case against is and what evidence the police have, it's very
difficult for me to comment.
Gonda: OK what about specifically on the issue of Roy Bennett and I
would just like to hear your legal interpretation of this. For his bail
application Morgan Tsvangirai stood as surety in his capacity as Prime
Minister, is this procedural?
Smith: It's the first time I have ever heard this being done, where the
Prime Minister comes in – you see the problem too is that I don't
actually know what was in his letter or what it said or anything. I've
just got press reports and they differ in different reports depending
on which press article you are reading. It's unprecedented but I
suppose the thing is if you've got the Attorney General who says that
he's a supporter of Zanu-PF, Morgan Tsvangirai might well feel that
it's a political position in the position of the Attorney General. That
might be why he has this problem because he feels that the Attorney
General is not being impartial because of previous statements that he
had made.
Gonda: So in theory and in practice, the Attorney General should be representing the Prime Minister – is this the case?
Smith: Well, this comes back to the problem with our constitution.
You've got a position of the Prime Minister without what his functions
are and all that sort of thing. The Attorney General represents the
State, the President – and Mr Tsvangirai is just like a Minister, or a
Prime Minister, he's just a member of that so you couldn't really say
the Attorney General represents the Prime Minister.
Gonda: But what does this mean on the issue of separation of powers between the judiciary and the executive?
Smith: Well what it means is that the executive should never try and
put pressure on the judiciary you know to find a judgement of guilty or
innocent or in a civil case if that is what the order should be about.
And it could well be interpreted that the letter of the Prime Minister
is an indication to the Courts that this is what the Prime Minister
expects the Court to do. In other words, irrespective of the merits of
the case, to release him on bail – and that's the function of the judge
to do depending on the facts before him, the information and that sort
of thing.
Gonda: That is where the problem is to some extent. What do you do when
the judiciary plays a partisan role? I've interviewed some of the
defence lawyers like Beatrice Mtetwa and they complain that the
Attorney General's office has been misusing certain parts of the
constitution and also invoking sections of the Criminal, Procedures and
Evidence and Act. What can you say about that?
Smith: Well I think it's very unfortunate that so many members of the
legal profession do have that perception of the Attorney General's
office. I'm not saying what my perceptions are, but I'm just saying
that it is very widespread in the legal fraternity from what I've heard
and that's what makes a problem and probably this is why Mr Tsvangirai
thought that he should write that letter.
Gonda: So what are your perceptions of the AG's office?
Smith: I'd rather not comment, maybe that explains it.
Gonda:(laughs) OK, but why not though?
Smith: I'd rather not go down that route, you know. I was in the
Attorney General's office for nearly 20 years, I was a judge of the
High Court for nearly 20 years and I'd rather not get involved in these
political things at this late stage when I'm retired.
Gonda: Right. What about on the issue of the land invasions on farms
that are protected by a SADC tribunal ruling and the SADC ruling is not
being implemented in Zimbabwe . I understand also that the Attorney
General and the Chief Magistrate actually held a workshop for
magistrates in Chegutu earlier this month at which magistrates were
told to ignore this ruling. Is the judiciary bound by this SADC
decision?
Smith: No because we haven't got any legislation that makes it part of
our law but what I find difficult to understand as far as SADC is
concerned is that when this country joined SADC and signed up as a
member, one of the obligations was to comply with all the provisions of
the SADC treaty. Now the SADC Tribunal has come down unanimously and
said well they've breached this one provision of the treaty about
expropriating property without paying compensation. And four out of
five have come out and said they've breached another provision of the
constitution by acting on a racial basis, discriminating on the grounds
of race. Now that is the finding of the tribunal that's been set up by
SADC. Now you've got the SADC members where a member has just blatantly
breached, or the tribunal has found that it's just blatantly breached
the treaty and the SADC members seem to say well, not even slap their
wrist, just say well that's what the tribunal says and just accept it
and carry on as normal as though it's quite in order for a member to
breach a condition of the treaty.
Gonda: What could SADC actually do then if a member is in breach of the treaty?
Smith: Well you know I'm not really au fait with the provisions of the
SADC treaty but I would think like any EU agreement or SADC or
something like that, if a member breaches one of the fundamental
provisions of that treaty and the members don't do anything about it,
then what is that treaty worth? I mean, it means any other member state
can breach any other conditions it wants, can say oh don't worry about
being democratic … we can have a military coup, I know we're breaching
this provision about democratic government but so what?'
I mean we've got the case where as far as Zimbabwe 's concerned the
SADC members completely ignore a breach identified by their own
tribunal then how are they going to act differently if any other
country breaches the treaty? Then what worth is the value of the
treaty?
Gonda: I understand that the Chief Magistrate Herbert Mandaya actually
told the magistrates at this workshop that treaties that are entered
into by government cannot form part of Zimbabwean laws unless they go
through parliament. Has he got a point there?
Smith: That is right yes, but normally when a government does enter
into a treaty and is saying that it will do this and observe this and
that, then it passes legislation to give effect to the provisions of
that treaty. And if our government hasn't done that then they haven't
amended our law to make it part of the laws of our country.
Gonda: And finally Justice Smith it has been widely reported that you
retired because of problems that you had with the President. Is there
any truth to that?
Smith: That is definitely not true. In terms of the Constitution, a
judge retires at the age of 65, unless he can produce a clear bill of
health showing that he is physically and mentally in sound condition
and I was able to do that, but then in terms of the Constitution I
turned 70 on the 19 th of June 2003 so I had to retire at the end of
June 2003.
Gonda: And it had nothing to do with political interference?
Smith: Nothing to do with political interference at all.
Gonda: But you are sometimes called back to the Bench whenever you are needed?
Smith: No. In terms of the pension conditions, a judge who retires can
be called upon to come back for one term a year. I was asked if I would
be prepared to come back and I certainly didn't want to lose my pension
and I said I would and I've never been called on to go back.
Gonda: Do you miss it?
Smith: I did at first but the way things are at the moment I wouldn't
be very happy to be back there. I prefer doing my consulting and that
sort of thing, arbitrations, and that I find much more interesting and
pleasant.
Gonda: OK, and a final word Justice Smith.
Smith: I am very optimistic about the change that is coming. I think
this new inclusive government has got a very uphill task but as long as
we have people with goodwill and they really mean what they have
committed themselves to, then I think there's a good chance of us
turning around the economy and restoring the rule of law in the
country.
Gonda: Thank you very much Justice Leslie George Smith.
Smith: Ok.
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