Daniel Nemukuyu Senior Court Reporter—
PUBLIC interviews to select a successor to outgoing Chief Justice Godfrey Chidyausiku, which had been slated for Monday, now hang in the balance after a law student filed an application at the High Court contesting the legitimacy of the panel set to conduct the selection process.
Mr Romeo Zibani, a fourth-year student at the University of Zimbabwe, filed the application on Wednesday.
He is arguing that Chief Justice Chidyausiku, who chairs the Judicial Service Commission, had closely worked with the four nominees. It is the student’s argument that it was unfair and improper for Chief Justice Chidyausiku to be part of the panel.
Deputy Chief Justice Luke Malaba, Supreme Court judges — Justices Rita Makarau and Paddington Garwe — together with Judge President George Chiweshe, are lined up to participate in the public interviews.
Justices Chiweshe and Malaba are also JSC commissioners, which Mr Zibani said would also compromise on the fairness of the interview.
Mr Zibani wants the High Court to order Vice President Emmerson 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 his 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. While the court application was pending, Mr Zibani yesterday filed a separate urgent chamber application to stop public interviews slated for Monday.
Represented by Venturas and Samkange law firm, Mr Zibani is arguing that if the interviews are conducted on Monday, his main court application will be rendered academic. The urgent chamber application has been set for 10am today at the High Court.
Mr Zibani’s main court application challenges the legitimacy of the panel of interviewers.
“The conduct of the interviews is not feasible, transparent and fair. The only reasonable and practical way forward is for the first respondent (JSC) to set up a panel of retired judges to be submitted to second respondent (President Mugabe) for appointment.
“Such judges can be of both the High Court and or Supreme Court or any such judges from Roman Dutch jurisdiction outside Zimbabwe. The long-term solution is to amend the Constitution and allow the appointing authority unfettered powers to appoint persons to the post of Chief Justice,” reads part of Mr Zibani’s founding affidavit.
Some of the panellists, according to Mr Zibani, are junior to the four nominees, creating challenges for them to interview their bosses.
“In fact the remaining members of the panel ought to be saved the agony of having to interview their own colleagues.
“I genuinely believe that the current panel of Commissioners of JSC are not competent to interview and recommend to the second respondent suitable nominees . . .”
Mr Zibani described the relationship between Chief Justice Chidyausiku and the four candidates as “incestuous”.
“Certain relationships between members of the interviewing panel and the four candidates can best be described as “incestuous”.
“It is submitted that as a result of this fact, it is not possible to conduct fair, impartial and credible interviews for the post of Chief Justice,” he said.
Mr Zibani indicated that Justice Malaba was deputy to the outgoing Chief Justice and they have worked together for a long time. He added that Justice Malaba was also a Commissioner for JSC and he also deputises the Chief Justice in JSC as Deputy Chairman.
“This is the commission tasked with the conduct of interviews to the post of Chief Justice. He is one of the nominees to be interviewed on the 12th of December 2016,” said Mr Zibani.
On Justice Garwe, Mr Zibani said: “He is a long standing colleague of the outgoing Chief Justice, having worked together for years in the Supreme and Constitutional Courts.
“They are definitely colleagues on a day to day basis. Further it is known that the two are social friends outside office hours.
“They both come from the same district in Zimbabwe.”
Commenting on the relationship between Justice Makarau and the outgoing Chief Justice, Mr Zibani said:
“She is a colleague of the outgoing Chief Justice, working together in the above courts (Supreme and Constitutional) for the past six years.
“More importantly, she is the Secretary to the Judicial Service Commission. In that respect, she works very closely with the outgoing Chief Justice, who is the Chairperson of the Commission. Like Justice Garwe, she hails from the same district as the outgoing Chief Justice.”
On Justice Chiweshe, Mr Zibani had this to say:“As Judge President, he reports directly to the Chief Justice on all matters affecting the High Court.
“For that reason, the two are colleagues in the general sense of the word.
“Chiweshe (JP) is also a Commissioner of the JSC, which is chaired by the Chief Justice. The two are thus colleagues in this respect as well.”
JSC, President Mugabe, the Chief Justice, VP Mnangagwa and the four candidates are yet to respond to the application.