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The Government yesterday said the ruling by the
Administrative Court to allow The Daily News to resume publishing does not mean
the paper can resume operations because the ruling is academic and cannot be
enforced.
In a statement, the Minister of Information and Publicity Professor Jonathan Moyo, said the Associated Newspapers of Zimbabwe, publishers of The Daily News and Daily News on Sunday, could not resume publishing because of legal questions pending at the Supreme Court. Prof Moyo said in terms of the law, the judgment handed down by the president of the Administrative Court in Bulawayo, Mr Selo Nare, did not in any way mean that ANZ now had a lawful basis to publish. "Quite to the contrary, and far from it, todayâs (yesterday) judgment of the Administrative Court is at best academic in that it has no practical force or effect because it cannot be lawfully enforced or executed given the legal background of the case which is replete with as yet unresolved fundamental legal questions that are pending in the Supreme Court," said Prof Moyo. He said while the Government had noted the judgment and the Administrative Court might have been within its rights in handing down the judgment, the fact remained that ANZ could not enjoy the benefits of that judgment. "This is because the judgment has been made by the wrong court, a court whose jurisdiction has been properly and lawfully challenged in the Supreme Court of Zimbabwe. "It is trite to mention that a judgment of a lower court whose jurisdiction and competence has been legally and properly challenged in a higher court, cannot be implemented without risking not only causing irreparable damage to the interests and rights of one of the parties involved, but also causing irreparable damage to the administration of justice and the rule of law," he said. "Jurisdiction is the essence and lifeline of judicial discretion. Implementing or executing judgments of courts that have neither jurisdiction nor competence to make those decisions would fly in the face of the rule of law and plunge our vibrant constitutional democracy into the abyss of lawlessness and corruption of the judiciary process." In any event, Prof Moyo said, it was common cause that the jurisdiction of the Administrative Court was challenged by the Media and Information Commission in the Supreme Court through a notice of appeal filed on October 31 this year, after the Administrative Court made a final judgment in favour of ANZ on October 24. He said it was also common cause that the jurisdiction of the Administrative Court was further challenged by the MIC again in the Supreme Court through a notice of appeal filed on December 1 this year. "Further more, it was common cause that the judgment made today (yesterday) was a result of a controversial case that was filed with the Administrative Court well after the court had finished with its business in the matter and well after the Media and Information Commission had noted its appeal with the Supreme Court where the matter now firmly awaits to be heard and disposed of." Prof Moyo said in the circumstances and as a matter of the rule of law, it was patently clear that yesterdayâs judgment by the Administrative Court had no force of law and thus could not be implemented as the Supreme Court of Zimbabwe still had to dispose of the appeals that were properly and lawfully lodged with it by the MIC on October 31 and December 1 this year. "That is the long and short of the legal position. Consequently, Government will not tolerate any violation of this clear legal position by ANZ or anyone else. The rule of law must be respected and upheld at all costs without fear or favour. "A cardinal principle of the rule of law is that while the courts have a duty to interpret the law, the executive has a duty to implement the law and this is precisely what the Government is going to do in this case and no amount of political or any other intimidation, propaganda or falsehoods will sway the Government from its constitutional responsibility and duty to implement the law." Mr Nare yesterday gave ANZ leave to execute a judgment, which allowed them to publish. In his 20-page judgment, where he read the final order, Mr Nare allowed the ANZ to carry into effect the judgment of the Administrative Court sitting in Harare on 24 October this year, pending the appeal by the MIC at the Supreme Court. He said the order should remain of force and effect notwithstanding the filing of any notice of appeal against it by MIC. MIC was ordered to pay the costs of the application. MIC immediately appealed at the Supreme Court against Mr Nareâs judgment saying he had erred in holding that its appeal over the jurisdiction of the Administrative Court had no prospects of success. "The learned president erred in finding that the respondent (MIC) does not stand to suffer any irreparable harm or prejudice by the excution of the judgment pending the appeal. "The learned president also erred in holding that the balance of hardships or convenience favours the applicant (ANZ) in this matter, especially regard being had to the fact that the honourable president misdirected himself in his finding that the respondentâs appeal is frivolous and vexatious and has no real prospects of success," MIC lawyers in their notice of appeal. â Court Reporter/Bulawayo Bureau The Mulindwas Communication Group "With Yoweri Museveni, Uganda is in anarchy" Groupe de communication Mulindwas "avec Yoweri Museveni, l'Ouganda est dans l'anarchie" |
