Of irrational opposition and constitutionalism Rtd Chief Justice Chidyausiku
Chief Justice Chidyausiku

Chief Justice Chidyausiku

Joram Nyathi Spectrum
SOME of us were not surprised when the Supreme Court on Monday this week ruled the Judicial Service Commission (JSC) acted within the law in December last year when it went ahead with interviews to select the next Chief Justice after noting an appeal against Justice Charles Hungwe’s interdict.

Section 180 of the Constitution is unambiguous on that.

Until the section is amended, that is the position at law.

There is no way Justice Hungwe could have nullified that section at the last minute by merely telling the JSC the Executive intended to amend the said section. (I am not a lawyer, just a citizen.)

What I, however, find troubling are the reasons advanced by those opposed to the proposed amendment: that this constitutes interference by the Executive in the functions of the Judiciary, contrary to the principle of separation of powers; that it is too early to amend the Constitution since it was adopted only a short four years back, and finally that a judicial officer selected through public interviews is “independent”, and likely to enhance the rule of law, suggesting and implying at the same time that the law is neutral and can, on its own, resolve all important national questions unaided, if not pushed, by political and historical considerations.

That is not necessarily the case in real life.

On the contrary, our short history of independence demonstrates that the law can and is often used to defend and protect and perpetuate historical injustices and economic inequalities; that in letter and spirit it can in fact be intended to protect and preserve unjust racial minority privileges, thus forcing the hand of the politicians through the Executive.

So, let’s get going.

Obviously Zanu-PF as the governing party would love the law to prioritise and serve its own interests.

But I think the insinuation is wrong to suggest the amendment sought on the procedure for the selection or appointment of Chief Justice and other senior judicial officers is intended for President Mugabe to appoint people of his choice.

The intention is for whoever is elected President of Zimbabwe to enjoy the discretion of such a choice.

The amendment may be pushed by Zanu-PF, but is certainly not a privilege solely for President Mugabe.

I don’t understand why there are efforts to make it sound like the amendment is target-specific, as if it were a temporary measure.

Next, let’s get issues clear.

The Supreme Court noted that Justice Hungwe could not stop a legal process merely on the basis of an intention by Government to amend the Constitution.

Justice Hungwe

Justice Hungwe

That is why the judges gave the state lawyer Mr Ephraim Mukucha a torrid time for his straw man argument.

He had no leg to stand on.

What is, however, important is the Supreme Court never said the Executive could not cause Section 180 to be amended.

It said Government was free to proceed with the amendment, following due process.

Another facetious argument concerns the timing of the proposed amendment.

It is being argued that it’s too early to amend the Constitution only four years after its overwhelming adoption through a national referendum in 2013. We are told a constitution is sacrosanct.

What is conveniently overlooked in this argument is that the Constitution was a product of political compromise and gamesmanship between the main political parties, Zanu-PF and MDC-T.

Otherwise the process would have gone on forever.

In fact, both parties hinted ahead of the July 2013 harmonised elections their desire to amend certain clauses of the Constitution.

Justice Hungwe’s reasoning exposes the fallacy of this argument about timing, and the Supreme Court made no attempt to fault his logic.

He pointed out why the process of selecting senior judicial officers through interviews was, for lack of a better expression, awkward. These were his words: “It occurs to me that where a lawful process leads to an absurd result in the sense that colleagues select each other for entitlement to public office, as argued by the applicant, it cannot be sanctioned on the ground that it is provided for in the law. Such an approach is irrational.”

Now, to those who argue that it is too early to amend the Constitution, it might be pertinent to ask whether it is rational to perpetuate an absurdity purely because it is new?

And more generally and biblically, was man made for the Sabbath or the Sabbath for man? Should we perpetuate an absurdity just because a constitution “is sacrosanct”?

The main argument for public interviews is that they enhance transparency, fairness and independence. That the lawyers so selected won’t likely be beholden to politicians or the appointing authority, because judges must not meddle in politics.

But that doesn’t seem to be always the case in practice, if we go by the comments made by a senior lawyer, Beatrice Mtetwa, as quoted by a local newspaper this week.

She told the Daily News in an interview published on Wednesday there were lawyers who aligned themselves politically.

“This is right across the board, you find lawyers that are openly factional … judges that are also openly aligning themselves with political players and that is a very sad development” in light of efforts to maintain the principle of separation of powers.

Several issues immediately arise. The first is that lawyers themselves are not neutral actors. They are aligned politically.

The second and more important issue is that public interviews don’t guarantee a neutral judge.

At most they guarantee a competent one, but who must interpret laws which are necessarily political.

To interview or to appoint, that is not the question.

Yet there is another unpleasant aspect to the public interviews.

They are good for the winning candidates. What about those who don’t qualify?

Was it the intention of voters in the constitutional referendum that aspiring senior judicial officers should be exposed to public humiliation, embarrassment and ridicule for personal deficiencies in the name of transparency? What other public office exposes interviewees to public spectacle?

Is this not a way of eliminating from competition otherwise competent lawyers who are not good at public displays but can reason logically and write solid judgments? In short, do public interviews as a process guarantee the best legal brains?

More crucially, do public interviews balance the need for transparency with fairness to the individuals seeking those important public offices?

Then the fundamental question of political or Executive interference in the Judiciary, and amending a national constitution.

There are often pretences that the principle of separation of powers is or should be absolute.

This is to turn logic on its head because both the Judiciary and the Constitution are products of political processes to achieve set goals.

Those processes are themselves manifestations of history as experienced.

People make the rules of how they want to organise their society, and select individuals with skills to interpret and ensure enforcement and compliance with those rules.

Thus the sanctity of a constitution cannot derive entirely from principles set by another sovereign whose lived experience is totally alien.

A constitution is a set of rules to regulate the conduct of living beings.

It cannot hog-tie them simply because those selected to administer it now don’t want it altered.

A recent practical example should make the point and prove the fallacy.

Zimbabwe’s land reform and subsequent black economic empowerment policies would not be what they are today had Anthony Gubbay remained Chief Justice.

He clung to the Constitution, and in that constitution he was defending a propertied white world-view and its interests.

Chief Justice Chidyausiku, when he came in, didn’t amend the Constitution.

He knew it was his role to advance a new world-view and ethos, contrary to what Gubbay stood for.

He allowed the makers of the Constitution, the people, do the necessary amendments, which Gubbay sought to forestall.

The real risk to constitutionalism in Zimbabwe is a reactionary Judiciary seeking to tell the Executive that it’s not yet time to change or amend the national Constitution.

Even if such an amendment doesn’t disadvantage any section of the population or political party in a material way.

To put it crudely, through the people politicians make a constitution.

It cannot therefore turn around and say “don’t touch me” when it seen to sanction “irrational” processes.

Unfortunately our opposition is as irrational today as it was in 2000 when it “won” the referendum against land reform.

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