[See Court Watch of 10th November 2015 for the background to the allegations.] Mr Tomana’s removal from office was published in General Notice 292/2017. As a result the Judicial Service Commission [JSC], in accordance with the Constitution, then advertised the vacancy for the position of Prosecutor-General, and invited the public to nominate suitable candidates to fill the post.
The deadline for the submission of nominations is the close of business on Friday 14th July 2017.
Preliminary Steps in the Appointment Procedure
Section 259(3) and (4) of the Constitution stipulate that the Prosecutor-General—
- is appointed by the President on the advice of the JSC following the procedure for the appointment of a judge
- must be a person qualified for appointment as a judge of the Supreme Court.
Note: The Constitution of Zimbabwe Amendment (No. 1) Bill currently before Parliament, which seeks to extend the President’s powers in the appointment of the Chief Justice, the Deputy Chief Justice and the Judge President of the High Court, does not affect the manner in which the Prosecutor-General will be appointed.
The appointment procedure involves five distinct steps outlined in section 180(2) of the Constitution. The first two steps – advertising the position inviting the President and the public to make nominations – have already been completed.
On 19th June, through advertisements in newspapers publications and on its website, the Judicial Service Commission announced that a vacancy of Prosecutor-General of the Republic of Zimbabwe had arisen. The advertisement stipulated the constitutionally required qualifications to fill the position (the most important being that the Prosecutor-General must be qualified for appointment as a judge of the Supreme Court), and invited the public to nominate suitably qualified persons to fill the position.
The official nomination form must be used
The form [JSC/PG/1] can be obtained from the office of the Secretary, Judicial Service Commission, Old Supreme Court Building, cnr Kwame Nkrumah Avenue/Third Street, Harare; or the office of any Provincial Magistrate in charge of a province.
Alternatively, it can be downloaded from the website of the Judicial Service Commission www.jsc.org.zw, and is also available on the Veritas website [link]. A separate form must be used for each nomination.
Details Required on the Form
In order to complete the form, the nominator must know the nominee’s full name, gender, date of birth, national identification number or valid passport number, name and address of employer and position. The nominator must provide his or her full name, national identification number or valid passport number, address and telephone contact numbers. If the nominator is an organisation, the organisation’s name, city, province and country are also required.
Candidate’s CV and acceptance of nomination
The candidate’s curriculum vitae must be attached to the completed nomination form. The candidate must sign the form to indicate acceptance of the nomination.
Where to submit completed form
Completed nomination forms, with the candidate’s CV attached, must be submitted to—
- the office of the Secretary, Judicial Service Commission, Old Supreme Court Building, cnr Kwame Nkrumah Avenue/Third Street, Harare; or
- the office of any Provincial Magistrate in charge of a province.
Deadline for Acceptance of Nominations
The nomination forms with the candidate’s CV attached must be submitted no later than close of business on Friday 14th July 2017
All members of the public, including organisations, may submit nominations. In terms of section 180(2)(b) of the Constitution, the President is also eligible to nominate candidates and will have received a separate written invitation.
Qualifications Required for Appointment as Prosecutor-General
The formal qualifications are the same as those for the post of a Supreme Court judge, and are outlined in section 178 of the Constitution. To be appointed a candidate must —
- be at least 40 years old, and
- be a Zimbabwean citizen, and
- EITHER have been judge of a court of unlimited civil or criminal jurisdiction in Zimbabwe or a country in which English is an officially recognised language and the common law is Roman-Dutch [e.g. South Africa] or English [e.g. Zambia] OR be currently and have been for at least 10 years, whether continuously or not, qualified to practise as a legal practitioner in Zimbabwe or any one of the other countries just mentioned and be currently so qualified to practise.
Any appointee must, in addition to having the formal qualifications, also be “a fit and proper person to hold office as a judge”, in this case a fit and proper person to hold office as Prosecutor-General. It is under this head that competence, integrity, independence and leadership ability fall, all of them necessary qualities in a Prosecutor-General.
Subsequent Steps in the Appointment Procedure
The procedure after the expiry of the period for receipt of nominations is laid down in section 180(2) of the Constitution. The JSC must—
- conduct public interviews of prospective candidates, and
- prepare a list of three qualified candidates for each position, and
- submit the list of three names to the President.
The President then makes the appointment from the list, unless he considers that none of the persons on the list is “suitable for appointment”. If he considers that not one is suitable, he must communicate that to the JSC and require it to submit a further list of qualified persons, from which he must then make his appointments.
Comment: The President cannot appoint someone whose name has not been submitted by the Commission.
Tenure of Office of the Prosecutor-General
The Prosecutor-General is constitutionally independent and must be appointed for a six year term, which is renewable only once. He or she enjoys security of tenure equivalent to that of a judge [Constitution, sections 259 and 260].
The Former Prosecutor-General
The office of Prosecutor-General is a new office for Zimbabwe. It was created by the Constitution, and this is the first occasion calling for the use of the new constitutional procedure to appoint a Prosecutor-General.
Mr Tomana was the first Prosecutor-General, but without having been appointed. He became Prosecutor-General by operation of law under a transitional provision of the Constitution, because he was the person holding office as Attorney-General immediately before 22nd August 2013 – the date on which the Constitution came fully into force [Constitution, Sixth Schedule, paragraph 19(2)].
Since Mr Tomana’s suspension in July 2016 Advocate Ray Goba has been the Acting Prosecutor-General.
Documents Available on Veritas website
Judicial Service Commission position advertisement [link]
Nomination form [link]
Constitution of Zimbabwe [link]
Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information suppliedPost published in: Featured