Tendai Mugabe Senior Reporter
The current Constitutional arrangement where a Chief Justice is appointed via public interviews administered by “juniors” in the Judicial Service Commission (JSC) is untenable, Vice President Emmerson Mnangagwa has said.
VP Mnangagwa said this had necessitated Constitutional Amendment Number One which seeks to empower the President to nominate and subsequently appoint a person of his choice in consultation with the JSC.
VP Mnangagwa — who also superintends over the Ministry of Justice, Legal and Parliamentary Affairs — said this to journalists after delivering a lecture to military officers attending Joint Command and Staff Course Number 30 in Harare yesterday.
He said zanu-pf compromised on the matter during the constitution-making process for the sake of progress.
“We in the Executive are not happy with the current procedure which as zanu-pf during the constitution-making process did not agree to, but compromised for the sake of progress and allowed that even the Chief Justice would be chosen through a process where he or she is interviewed by the juniors,” said VP Mnangagwa.
“The current Chief Justice (Godfrey Chidyausiku) sits in the Commission, the Deputy Chief Justice (Justice Luke Malaba) sits in the Commission, Justice (Rita) Makarau heads the Commission, the Judge President (George Chiweshe) sits in the Commission and the other one who also applied who does not sit in the Judicial Service Commission is Justice (Paddington) Garwe,” he said.
“But these top judges are the ones who applied wanting to become Chief Justice. Then the bosses had to sit before their juniors so they say: ‘that is the boss we want to be our boss as Chief Justice’. We thought that was not proper so we are bringing back the previous provision of the old Constitution where it is the President who nominates three names for consultation with Judicial Service Commission for purposes of knowing whether they qualify or not and the President will then appoint whoever he wants from three nominees. That is the position.”
In amending the Constitution, VP Mnangagwa said, the Executive was not interfering with provisions of the Constitution that give JSC the power to select aspiring candidates through public interviews and submit the names to the President for consideration.
He said that Constitutional process was followed in its entirety although one of the candidates failed to score the required marks for consideration.
“The current constitutional provision provides that the Judicial Service Commission shall advertise for the vacancy of a judge, including that of the Chief Justice,” he said.
“The Judicial Service Commission has since done so and advertised for those who wish to apply to fill the vacancy of Chief Justice when it occurs, because it is not there now. Four people applied to fill that post. The current process under the Constitution is that the Judicial Service Commission conducts public interviews of those who are interested to become Chief Justice and recommend the best three out of the exercise of the interview to the President to choose one as Chief Justice,” he stated.
“That was done and three people presented themselves for the interview. The results came out which were given to me to transmit to the President. The results were that Deputy Chief Justice Malaba came tops with 91 points, second Justice (Rita) Makarau with 90 points. The third judge, Supreme Court judge Justice (Paddington) Garwe, I think, had 52 points but the passing mark, I think, is 65 or 70 points – that is the passing mark.”
Added VP Mnangagwa: “So two people passed but the Constitution bids that three names must be submitted to the President for him to select one as Chief Justice. So the names were submitted of the two who passed but because there was no third one who passed, the Judicial Service Commission found it fit to include the name of the one who did not succeed to make it three and that has been given to the President.
“That is the process of the Judiciary. It has nothing to do with the Executive.”
Asked on the application filed in the Supreme Court by Harare lawyer Ms Beatrice Mtetwa on Tuesday on circumstances surrounding the appointment of the new Chief Justice, VP Mnangagwa said: “That is the issue of the judiciary. I think you should understand the difference between the three arms of the State. There is the Executive headed by the President and Cabinet. We have the Judiciary headed by the Chief Justice and the Legislature head by the Speaker. You are asking me questions of the judiciary. I think who to ask is the Judiciary. We in the Executive are amending the Constitution and the Constitution allows us to amend it and that is what we are doing.”
Outgoing Chief Justice Chidyausiku is set to leave office at the end of this month, paving way for a new face at the apex of the JSC.