A judge has lashed out at ex-Police Commissioner-General Augustine Chihuri for exhibiting “misguided pride” when he fired three police officers for allegedly smuggling potatoes and 600 sachets of cane spirits while deployed at the Zimbabwe-Zambia Border Post.
Former High Court judge Justice Francis Bere, now on the Supreme Court bench, made the remarks as he ordered Comm-Gen Godwin Matanga to reinstate the three former cops who were fired 10 years ago.
Ex-Sergeant Kenneth Tsiwo and ex-Constables Trouble Chikwati and Last Mabvuragudo were stationed at Fairbridge Police Station before they were fired by Chihuri in October 2009 for allegedly conniving with a Zambian vendor to smuggle the consignment into the country.
They were fired after they were convicted on charges of violating section 35 of the Schedule to the Police Act (acting in an unbecoming manner prejudicial to good order or likely to discredit the police) following a disciplinary hearing.
However, when they tried to appeal to Chihuri in terms of the Police Act, he refused to entertain them and used his discretion to fire them without hearing their side of the story.
Justice Bere’s ruling follows an application for review of the disciplinary proceedings by the trio challenging their dismissal. They cited Police Service Commission and ZRP Commissioner-General, as respondents.
In nullifying Chihuri’s decision, the judge said the former police boss exhibited misplaced pride when he fired his subordinates without affording them an opportunity to argue their case.
“The rules of natural justice demand that even a murderer must be heard first before he is condemned. The second respondent (Chihuri) used his discretion to decide the fate of the applicants without giving them an opportunity to argue their case, and in my view, nothing could be worse than this,” said Justice Bere.
“The second respondent cannot exhibit misplaced pride by justifying a violation of one of the pillars of our sound administrative systems, the audi alteram partem rule. Administrative functionaries must not clandestinely make decisions of far reaching consequences against affected parties without hearing such individuals.”
Justice Bere said the dismissal of the three applicants was an act of institutional conspiracy between Chihuri and the trial officer who convicted them.
“Unfortunately, this conspiracy was endorsed by the first respondent (Police Service Commission) by failing to properly analyse the conviction itself. Clearly, the trial officer could not have convicted the applicants on scanty evidence. Indications are that he had decided to convict the applicants irrespective of what the evidence provided showed,” he said.
“Such officers are dangerous to the administration of justice. The conviction of the applicants on the strength of the evidence led in this trial represents a serious miscarriage of justice.”
The judge said the disciplinary proceedings were marred by gross irregularities and ordered Comm-Gen Matanga to reinstate the three applicants.
“I am more than satisfied that the application for review be and is hereby upheld. The decision of the first respondent upholding the second respondent’s decision to discharge the applicants from the Police Service be and is hereby set aside. It is ordered that the applicants, Ex-Sgt Kenneth Tsiwo and ex-Constables Trouble Chikwati and Last Mabvuragudo be reinstated without loss of benefits and remuneration,” ruled Justice Bere.
The three applicants, through their lawyers Samp Mlaudzi and Partners, said their bosses denied them the statutory period of 72 hours to enable them to adequately prepare for their trial.
They also argued that they were denied legal representation with their trial having been fast- tracked leading to conviction.
In his founding affidavit, Tsiwo said they were arrested on June 23, 2009 for alleged smuggling.
“The goods were potatoes and 600 sachets of cane spirits. It was later established that the sachets belonged to Edith Mukombwe of Zambia and potatoes belonged to one Inspector Muzenda, our senior, who had sent us to collect them at the border post,” he said.
Tsiwo argued that they appeared before a single officer and were convicted despite Mukombwe having claimed ownership of the spirits.
“On October 14, we were served with a discharge notification with effect from October 8, 2009 from the Commissioner-General,” he said.
Chihuri, in his affidavit, said the applicants were intercepted by Zimbabwe Revenue Authority officials and found in possession of undeclared goods, hence, during the police disciplinary trial they were found guilty.
He said their acquittal in the criminal proceedings does not mean the disciplinary proceedings’ verdict should be the same.