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Financial Gazette (Harare)

Zimbabwe: Mann's Fate in Patel's Hands

Clemence Manyukwe

24 January 2008

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analysis

Harare — SITTING in his cell at Chikurubi Maximum prison, British mercenary Simon Mann could well be trying to untangle the contradictions and legal dilemmas surrounding those involved in his trial.

A catch-22 situation revolves around whether acting Attorney General (AG) Bharat Patel can deliver judgment on the Briton's appeal against a lower court's decision to extradite him to Equatorial Guinea, in view of the fact that he presided over the same matter last year as a High Court judge.

Wearing his judiciary hat then, Patel heard the extradition appeal separately from members of the executive and parliament who are intent on having Mann extradited. But now as an ex-officio Member of Parliament and Cabinet, Patel freely mingles with these parties.

Patel reserved judgment in the case, and is yet to come up with a verdict a month after taking over from Sobusa Gula-Ndebele, who was suspended towards the end of last year after being accused of abusing his office.

Mann's case represents a number of issues that are likely to cause headaches for Patel. He may find that positions he has previously taken as a judge are at cross purposes with those taken by prosecutors now under his command in the AG's office.

The Law Society of Zimbabwe (LSZ)'s council members are expected to meet next week to deliberate on the legal tangle and come up with a position regarding Patel's appointment, LSZ president Beatrice Mtetwa told the Financial Gazette on Monday. She could not comment further.

But Chris Mhike, a lawyer, said there was concern over Patel's appointment, as it goes against the doctrine of the separation of powers.

"My concern as a legal practitioner is that I am confronted with a situation where the concept of separation of powers is compromised in the manner that it has been in relation to justice Patel's appointment. I say so because the judiciary and the prosecuting authorities clearly fall into two separate categories."

"Patel's appointment is problematic in that it is not clear whether or not he has now resigned as a judge of the High Court."

Constitutional law expert Lovemore Madhuku said under current law, there was nothing wrong with a member of the judiciary being appointed AG.

But, he said, "it is a bad constitutional provision".

The law requires that for a person to be appointed to the position of Attorney General, he or she must have the same qualifications as a judge, and vice-versa.

Madhuku said the post of AG is unique in that it makes the holder a member of both the executive and the judiciary. But as the top prosecutor the AG is supposed to be independent of both branches.

"The problem is that in the political context of Zimbabwe, the AG is seen as a mere extension of the executive, and so the public might be justified to believe that, while serving as acting AG, judge Patel may be manipulated by the executive, and that is not good for the judiciary," said Madhuku.

Mann's lawyer, Jonathan Samkange, could not be reached for comment.

When Mann was arrested in 2004 along with 69 others while allegedly on their way to Equatorial Guinea to stage a coup, it was Patel, also serving as acting AG at the time, who directed that the alleged mercenaries be prosecuted.

Months later, Patel was appointed to the bench. Last year, Mann, whose prosecution Patel had ordered, lodged an appeal in the High Court against conviction and deportation to Equatorial Guinea. The presiding judge turned out to be Patel.

Mann, an Eton graduate, had previous associations with Executive Outcomes, one of the world's most renowned mercenary outfits, before he co-founded his own group, Sandline International, in 1996.

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