Gono begs court to forgive Kereke

IN an unusual twist to the legal battle between Gideon Gono and his former advisor, Munyaradzi Kereke, the ex-Reserve Bank of Zimbabwe (RBZ) governor has sought reprieve for his accuser to argue his case with the Constitutional Court (ConCourt) after the legislator for Bikita West missed the deadline to file his heads of argument.

Kereke is accusing his former boss of corruption and misconduct. He has dragged the country’s anti-graft agency into the imbroglio, claiming the Zimbabwe Anti-Corruption Commission (ZACC) has failed to investigate his complaint of alleged acts of corruption and irregular conduct by Gono while he was RBZ governor. Gono denies the allegations and has entered his defence in courts.

The case has, however, taken a fresh twist with the applicant failing to file his heads of argument with the ConCourt within the stipulated time. According to Practice of Direction No.2 of 2013, Kereke was supposed to have filed his arguments on Tuesday but failed to do so. He was still to do so even as of 1600 hours yesterday. Consequently, he is now barred from filing his heads of argument in response to Gono’s, which means that the matter will have to be brought before Chief Justice Godfrey Chidyausiku for directions in terms of the rules.

Instead of seizing this loophole to full advantage, Gono has opted for fair play. Through his lawyer, Tendai Biti, Gono said he preferred that the ConCourt gives Kereke a chance to argue his case and possibly file his heads of argument due to the significance of the case. He beseeched the ConCourt to allow the case to be argued even after Kereke failed to beat the deadline to file his heads of argument in response to those he filed in early February. In his letter to the Registrar of the Supreme Court who also acts for the ConCourt, Gono noted that Kereke had not filed his heads of argument by 1600 hours on Tuesday, the time at which the court closes for business.

Technically, Kereke, who could not be reached for comment by the time of going to print is therefore barred from filing his heads of arguments, which means that the matter would have to be brought before the Chief Justice for directions. Still, Gono pleaded with the courts 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.

The case highlights the magnanimity of Gono, who previously let off a local journalist who reported that he had bought a custom-made, top of the range Brabus Mercedes Benz from Germany when this was not true. Gono also let delinquent bankers who fled the country for externalisation off the hook, saying Zimbabwe had to let bygone be bygones and allow the bankers to contribute to national development.

When Gono filed his heads of argument in the case of February 4, the Registrar wrote on February 18 informing the former RBZ governor, who is the second defendant in the case, that his heads of argument had preceded Kereke’s own arguments and therefore the Buhera West lawmaker was now expected to file his heads of argument in response to Gono’s, after which Gono could also file supplementary heads of argument within 10 days of receiving Kereke’s response.

The Registrar had earlier written, on February 12, to Kereke advising him that he was required to file heads of argument within 15 days from the date of service of the Registrar’s letter, after which Gono was expected to respond within 10 days. “Please note that if you fail to comply with the above, the application will be placed before the honourable Chief Justice for direction,” the Registrar advised Kereke.

Biti said under ordinary circumstances, Kereke was obliged to respond by February 21 after he had become “the de facto respondent”. But since they had received the Registrar’s letter on February 12, Kereke had then been obliged to respond March 7.

“Assuming the applicant (Kereke) received and collected your letter on the 18th of February 2014 as is implied in your file copy of the letter referred to above, which the writer has inspected, then the dies induciae would have been Tuesday 11th March 2014,” wrote Biti in the letter to the Registrar on Wednesday.

He noted: “Our Perpetual Nyakapiko left the Constitutional Court of Zimbabwe at 1600 hours on the 11th of March and the applicant had not filed his heads of argument.” Kereke approached the Constitutional Court, established under Zimbabwe’s new Constitution, alleging that the ZACC had failed to investigate his complaint of alleged acts of corruption and irregular conduct by Gono while he was governor of the RBZ.

Kereke alleged that the ZACC failed to investigate the complaint against Gono in wilful violation of the Constitution. He alleged that the acts of the ZACC had denied him protection of the law and wants the Constitutional Court to direct the ZACC to commence, within 30 days, an investigation into his complaints against Gono. But Gono, in his heads of argument to which Kereke was supposed to respond, charged that Kereke’s application was defective in several respects, key of which was his failure to cite the RBZ and the ZACC, both of which were interested parties in the case.

Besides, he said, 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”.

Gono dealt then alleged defects in detail, one of which was failure to cite relevant parties in the case. He also argued that objectively, the order sought by Kereke was “absurd on the logic of the applicant’s own case and would in any event be reviewable on the grounds of bias”.

“The applicant, assuming he had correctly cited the Anti-Corruption Commission seeks an order directing same to conduct investigations against the 2nd respondent. 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. He also said 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. He alleged that Kereke’s case 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 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.

Kereke is currently embroiled in a legal battle with the Zimbabwe Revenue Authority over alleged double taxation involving his payout when he left the RBZ, reportedly running into US$1,5 million, and his hospital, Rock Foundation. He is also defending himself in an alleged rape case in which guardians of an alleged victim have gone to the High Court to seek his prosecution. – Staff Reporter