Tendai Mugabe:Senior Reporter
Presidents, the world over, appoint members of the superior courts and with only eleven days in office, United States President Mr Donald Trump, announced that he has already made a decision on the candidature of the person he wanted for America’s top judicial job.As such, legal experts on Tuesday said that there was nothing sinister with Zimbabwe’s Constitutional Amendment Number 1 that seeks to empower the President to appoint the Chief Justice and other leading members of the Judiciary.
They said Zimbabwe would have scored a first in the history of legal jurisprudence if it had proceeded to appoint the Chief Justice via interviews beamed live on national television.
Announcing on his Twitter account on Monday, President Trump said: “I have made my decision on who I will nominate for the United States Supreme Court. It will be announced live on Tuesday at 8:00pm.”
In the case of Zimbabwe, respected lawyer and former High Court Judge Justice Simbi Mubako said it had always been the norm that the Chief Justice was appointed by the President until the promulgation of the new Constitution in 2013.
He said the Chief Justice worked closely with the President and after the consummation of the new Constitution, he still felt that there was a lacuna in the law.
“There is nothing wrong with the President appointing the Chief Justice,” he said. “The Chief Justice works closely with the President and he or she ought to be appointed by the President. The Chief Justice should not be someone who opposes the President. “For other judges you may have interviews for the public to see but for the top person I think the President should appoint.”
Justice Mubako said even the American judicial system which is viewed by some as the epitome of democracy, allowed the President to nominate the candidate for that top job subject to Senate approval.
Another top lawyer and University of Zimbabwe lecturer Professor Lovemore Madhuku said there was nothing wrong with Constitutional Amendment Number 1 and once the law was amended, nothing should stop the President from appointing the Chief Justice.
He said those who criticised the amendments possibly were concerned that there might not be sufficient checks and balances in the system.
He said: “I think the whole matter is whether the amendments will provide sufficient checks and balances. In the American system the President nominates and the Senate then confirms. But the question of sufficient checks and balances is a matter of opinion because there is no universal yardstick to judge that this is sufficient and this is not.
“Each country must determine what is good for its system and what is not. These Western examples at times are not good because if you look at the British system there are no checks and balances. The Prime Minister just makes recommendations to the Queen and that’s it.”
A Harare lawyer who refused to be named said: “I do not know where all this noise about the appointment of the Chief Justice is coming from. It is just a matter of procedure and whichever route you take, the President will have the ultimate say.
“But as was announced by the Ministry of Justice, Legal and Parliamentary Affairs, there was no need for the Judicial Service Commission to proceed with interviews after the Executive indicated that they wanted to amend the constitution. That created unnecessary confusion.
“These two arms (Judiciary and Executive) should complement each other. Also a random analysis of international practices shows that Heads of State and Government appoint Chief Justices of their choice in their respective countries.”
A Government source who spoke to The Herald recently said: “The interviews were designed to strip the President of some of his powers and it had since emerged that it was the MDC-T that pushed for a clause in the Constitution for judges to be interviewed rather than appointed by the President arguing that appointment gave the Head of State and Government too much power.”
In Singapore the Chief Justice is appointed by the President chosen from candidates recommended by the Prime Minister while in Kenya, the President appoints the Chief Justice in accordance with recommendation of the Judicial Service Commission.