Daniel Nemukuyu Senior Court Reporter
GOVERNMENT has crafted a Bill to amend the Constitution with a view to giving the President sole discretion to appoint a Chief Justice, Deputy Chief Justice and Judge President of his choice whenever such vacancies arise. Vice President Emmerson Mnangagwa, who also oversees the Ministry of Justice, Legal and Parliamentary Affairs, has set the process in motion by sending a memorandum to Cabinet proposing the changes to the supreme law of the country.
Law officer Mr Ephraim Mukucha from the Attorney-General’s Office pulled a shocker when he produced the memorandum, a copy of the draft Bill and an affidavit by the Permanent Secretary for Justice, Legal and Parliamentary Affairs, Mrs Virginia Mabhiza, during the urgent hearing of a matter in which a law student seeks to stop public interviews to select a new Chief Justice.
Chief Justice Godfrey Chidyausiku retires early next year and the Judicial Service Commission had initiated the process of selecting his successor. Deputy Chief Justice Luke Malaba, Judge President George Chiweshe and Supreme Court judges Justices Rita Makarau and Paddington Garwe were nominated as candidates for the post.
Their interviews were set for Monday.
However, a University of Zimbabwe fourth year law student, Mr Romeo Taombera Zibani, on Wednesday, filed an application at the High Court contesting the legality of the panel of JSC commissioners who are set to conduct the public interviews.
He sought the amendment of Section 180 of the supreme law of the country to do away with public interviews but grant the Head of State and Government powers to appoint a Chief Justice of his choice.
When Mr Zibani and the JSC had made their submissions of preliminary points before Justice Charles Hungwe, Mr Mukucha stood up and told the court that his clients, President Mugabe and Vice President Mnangagwa, were ready to abide by the court’s decision on the matter.
Before he took his seat, Mr Mukucha requested to submit the three documents.
After the documents were produced in court, JSC lawyer Mr Addington Chinake asked for an adjournment to take instructions in light of the development.
The memorandum prepared by VP Mnangagwa, in his capacity as Justice, Legal and Parliamentary Affairs Minister, sought to convince Cabinet to embrace the proposed amendments.
“It is proposed by this amendment that the office of Chief Justice, Deputy Chief Justice and Judge President of the High Court be appointed by the President after consultation with the Judicial Service Commission and that the office of Senior Judge of the Labour Court and the Administrative Court be appointed by the Chief Justice.”
It was also proposed that the changes to the Constitution should not require any referendum and a Bill to effect the changes, but must be gazetted three months before being debated in Parliament.
Mrs Mabhiza, in her affidavit, indicated that the process was already in motion.
“While the interviews have been slated for the 12th December 2016 in line with Section 180 of the Constitution, the third respondent (Justice Minister) has already set in motion a process of amending the provisions of Section 180 of the Constitution.
“The amendment seeks to provide that the President will have the discretion of appointing the Chief Justice in consultation with the Judicial Service Commission,” she said.
However, Mr Chinake for the JSC, questioned the usefulness of the documents.
“The third respondent has placed before you documents that are mere pieces of paper.
“The memorandum to the Cabinet and a draft Bill are unsigned, uncertified and there are no Cabinet minutes confirming the development.
“It is no different from any other piece of paper. It is not helpful. The Cabinet memorandum is not law neither is the draft Bill,” said Mr Chinake.
Mr Chinake said since Section 180 of the Constitution was still operational, it remained the law and JSC was simply complying with it.
“This court is obliged to enforce the law as it stands. A Cabinet memorandum does not override the Constitution. A draft Bill does not override the Constitution. There is no wrong that has been committed by JSC. It is simply acting in terms of the prevailing law,” he said.
Mr Chinake said there was no confirmation from the legislature that it intended to amend the Constitution. He added that the attitudes of the President and Cabinet towards the issue were never communicated to the court, hence the application must be thrown out.
A bid by JSC to seek Justice Hungwe’s recusal from handling the matter hit a snag.
JSC argued that since Justice Hungwe’s son worked for Venturas and Samukange that represented Mr Zibani, the judge had to recuse himself for professional reasons.
Justice Hungwe dismissed the application and proceeded to hear the matter.
After hearing arguments from all the parties, Justice Hungwe reserved judgment.
Mr Zibani wants the High Court to order VP Mnangagwa to initiate the amendment of Section 180 of the Constitution of Zimbabwe to allow President Mugabe to use his own discretion to appoint a Chief Justice of choice without going through the interview process.
Alternatively, Mr Zibani has proposed the setting up of an independent panel comprising retired judges to preside over the public interviews.
Some of the panellists, according to Mr Zibani, are junior to the four nominees, creating challenges for them to interview their bosses.
Mr Zibani described the relationship between Chief Justice Chidyausiku and the four candidates as “incestuous” and he was not in a position to fairly preside over the interviews.