Fidelis Munyoro Chief Court Reporter—
OUTGOING Chief Justice Godfrey Chidyau-siku has conceded that the current procedure of appointing the Chief Justice of the country is problematic. Chief Justice Chidyausiku indicated that he alerted the Executive on the impact of the new procedure outlined in the new Constitution early last year, but Government had been negligent.
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He made the remarks while officially opening the 2017 legal year in Harare yesterday.
“My sixth sense, however, told me that the impact of the new procedure, because of its drastic departure from the past process, might have escaped the attention of the Executive in as far as it relates to the appointment of the Chief Justice,” he said.
“As a cautionary move, I alerted the Executive to this new procedure in the appointment of the Chief Justice as early as March 2016. I did not get a response. I inferred from the conduct that the Executive was comfortable with the new procedure.”
Previously, the Chief Justice and other judges of the Supreme Court and High Court were appointed by the President in consultation with the Judicial Service Commission (JSC). This was changed in the new Constitution.
Section 180 (1) of the new Constitution requires the Chief Justice, Deputy Chief Justice, the Judge president of the High Court and all other judges to be appointed by the President after the vacancies are advertised, nominations are invited from the President and the public, public interviews are conducted before a list of three nominees is presented to the President whereupon he must appoint one of the trio as the Chief Justice.
Recently, Chief Justice Chidyausiku found himself in controversy for conducting public interviews to choose his successor in the face of the pending constitutional amendment.
The High Court stopped the public interviews to select the next Chief Justice, a few days before the scheduled date. The court granted the interdict that was sought by Romeo Taombera Zibani, a fourth year law student at the University of Zimbabwe who wants President Mugabe to select the Chief Justice.
But the interviews went ahead after the JSC filed a notice of appeal against Justice Charles Hungwe’s decision to stop the interviews.
But yesterday, Chief Justice Chidyausiku said he did the best he could to alert the Executive on the challenges around the new method of appointing judges including the Chief Justice and his deputy by way of public interviews.
After getting no response from the Executive in October last year, the JSC informed the Executive that the office of Chief Justice will be vacant with effect from March 1 this year.
The Executive, he added, was also informed that the JSC was initiating the procedures to fill the vacancy in accordance with the provisions of the Constitution.
The outgoing Chief Justice said he was surprised to receive communication a few days before the interviews were due to commence that an Executive order stopping the process had been issued.
“I responded to the communication, advising that the Executive’s directive could not be complied with without breaking the Constitution and that the interviews would proceed as planned and in terms of the Constitution,” he said.
“I have since established that the President never issued the alleged Executive order to stop the interviews.” Chief Justice Chidyausiku accused the media of attacking him for allegedly defying the court order and proceeding with the public interviews pending the amendment of the Constitution.
“Ever since adopting our stance to abide by the Constitution, a segment of the media has sought to impugn the integrity of the Judicial Service Commission. This is most regrettable,” he said.
“This is all I wish to say on this unfortunate debate. In this regard, I am inspired by Michelle Obama’s words of wisdom, ‘When your detractors go low, you go higher’. You do not follow them into the gutter.”
He would not comment on whether or not the JSC decision to proceed with the interviews despite a High Court interdict, against which it had appealed, was correct, was a matter that is sub-judice awaiting the determination of the court.
Chief Justice Chidyausiku said the debate over the appointment of his successor had of late assumed regrettable proportions which, could only do more harm than good to the judiciary.
He said whichever method used in the selection process of the new Chief Justice, President Mugabe has the final say and would always prevail. “It is also my view that the debate is much ado about nothing,” he said.
“It has obscured the one very important fact, that whatever method is used to appoint my successor, the appointment shall be made by His Excellency the President of the Republic of Zimbabwe
Currently, said Chief Justice Chidyausiku, the law provided for the President to make his selection from three nominees submitted to him by the JSC. He also said in the proposed amendment, President Mugabe would be at large to choose the next Chief Justice from the bench.
“Thus, whichever method is used, in the final analysis, it is the President’s choice that will prevail,” he said.
“We, as the judiciary, and the JSC accept that it is the prerogative of the Executive to decide what procedure is to be adopted for the appointment of a Chief Justice.
“However, as guardians of the Constitution and as people who have sworn to uphold the laws of Zimbabwe, we insist that whatever process the Executive comes up with and enacts into a law, that process must be upheld and must be respected at all times. This is what the rule of law demands of us.”
Chief Justice Chidyausiku said their stance as JSC was not about the identification of his successor, but about the observance of the Constitution as the supreme law of the land at all time.