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Justice Chinhengo

Zvamaida Murwira in BULAWAYO—
Government’s proposed constitutional amendments to allow the President to appoint the Chief Justice, his or her deputy and High Court Judge President are being lawfully steered and any criticism levelled against the process is not legally justified, retired High Court judge Justice Moses Chinhengo has said. He said while some people might not be happy with Constitutional Amendment Bill (Number 1), it was critical to note that the Executive had complied with the law relating to making such constitutional amendments.

He was addressing an oversubscribed seminar of stakeholders here aimed at reviewing the Bill.

The seminar, supported by the Southern African Parliamentary Support Trust, sought to conscientise people ahead of Parliament’s public hearing on the Bill next week.

“Today, I speak like a lawyer and I do not wish to speak like a politician. Our Constitution can be amended, but the procedures for doing so must be strictly adhered to. The provision relating to the Judiciary are not as severely entrenched as those relating to the Bill of Rights which is Chapter Four, and provisions relating to Land in Chapter 16 and the term limit provisions.

“I want to emphasise that, because we must appreciate that it is us who provided that this Constitution can be amended, anyone who is moving to amend the Constitution constitutionally you cannot fault him. Am I right?” said Retired Justice Chinhengo.

“We have agreed (as Zimbabweans) that you can amend this Constitution and you must follow certain procedures and if you follow those procedures to the letter, no one should really criticise you at the legal level. People may criticise, like the Law Society of Zimbabwe, and validly so, to say well, we do not think you can temper with our Constitution so soon after it was adopted, that is a good point. But if a person tinkers with it and does so lawfully and constitutionally, you cannot blame him.”

Justice Chinhengo said while he preferred that the most senior judge takes over or Parliament approves such an appointment, what the Executive was doing was lawful.

“As long as the Executive is following the laid down procedure of amending the Constitution, no legally sound criticism of its action can be justified and I want to emphasise the legal, you might not like it, you might think it is too soon, you might think it does not do us good but as long as they are following the provision of the Constitution you cannot fault the process. But that is not what I would prefer myself. My preference is that the most senior judge must become the chief justice as what happens in India,” said Rtd Justice Chinhengo.

He said what the Executive sought to adopt was not too different from other jurisdictions like South Africa and the United States in that the President appoints in consultation with the Judicial Service Commission and Parliament.

“So, when you look at this, the intended amendment is not too far away from what is happening in other jurisdictions especially South Africa, United States and so on but quite removed from the more recent approaches which are quite progressive, in my view,” he said.

Rtd Justice Chinhengo said he suspected that judges in the JSC must have sought to play politics by trying to appoint individuals among themselves but were outsmarted by the Executive hence they should not cry foul.

“I think if judges themselves played a political game, these things will happen. I think a political game has been played and that is why the others who hold a different view, and unfortunately for some, they happen to be the Executive who command the majority in Parliament, they can change the law. So to me, our judges must refrain from playing politics. If they leave politics out, it would be unlikely that politicians will interfere.”

Sapst deputy director, Mr Israel Chilimanzi and programme adviser, Mr Philip Mziri outlined the role of Parliament regarding promulgation of laws.