Race to replace Chidyausiku on

By Cyril Zenda

GOVERNMENT has begun preparing for the succession of the country’s Chief Justice, Godfrey Chidyausiku, who is nearing the mandatory retirement age of 70 years, the Financial Gazette has established.

Chidyausiku was born on February 23, 1947 and will turn 70 years in February 2017, sealing his fate in terms of the country’s laws.

Zimbabwe’s judges must retire at 65 years, but if they can demonstrate good mental and physical health certified by a medical doctor, they can stay on until they are 70 years old, after which no extension is possible.

Chidyausiku is therefore poised to retire early 2017; an eventuality that has made government to start preparing for his exit.

The appointment of three Supreme Court judges and six High Court judges two weeks ago should thus be viewed in the context of plans to renew the judiciary, as senior jurists, including the Chief Justice, prepare to give way to new blood upon their retirement.

As if to confirm that he is easing his way to the terraces, the Chief Justice has excused himself from Supreme Court responsibilities to concentrate on administrative duties as chairman of the Judicial Services Commission (JSC).

He has also indicated that he would become more involved in the supervision of judges.

“In fact, I am now more of a manager who supervises other judges to write judgments, unlike writing them myself,” he recently told regional counterparts during a Southern African Chief Justices’ Forum that he hosted in the resort town of Victoria Falls
“I no longer sit in the Supreme Court and I now only deal with constitutional issues. This allows me to manage both offices with less pressure.”

Supreme Court judges currently constitute the Constitutional Court (ConCourt), in which Chidyausiku said he will remain involved. Before downsizing his judicial responsibilities, the Chief Justice had been sitting in both the Supreme Court and the ConCourt.

The development has sparked speculation over Chidyausiku’s likely successor.
Chidyausiku’s position is key, being head of the Judiciary, one of the three pillars that, together with the Executive and the Legislature, constitute the State.

Harare lawyer, Vote Muza, tipped the current Deputy Chief Justice, Luke Malaba, saying he stood a good chance to succeed Chidyausiku.

“If merit were to apply, (Justice) Malaba is the best so far. He is good . . . very sharp and energetic. He is an extremely brilliant judge and well-respected in the legal fraternity,” Muza said when canvassed for opinion by the Financial Gazette.

Another lawyer and Movement for Democratic Change (MDC-T) spokesman, Obert Gutu, who was a deputy minister of justice during the coalition government, said there were a number of senior judges in the country qualified to succeed Chidyausiku.

“As a practising legal practitioner and politician myself, it would be highly improper for me to give a suggestion on who our next chief justice should be. The judiciary is a very dignified office that ought to be held in very high esteem at all times if we are to protect and enhance our fledgling democracy; more so if we are to respect the sacrosanct principle of the independence of the judiciary,” Gutu said.

“Suffice to state that there are very capable and learned judges on the Supreme Court and Constitutional Court bench who can easily and efficiently discharge the duties of a chief justice. We have men and women of honour and integrity who possess the requisite credentials to occupy that lofty judicial office.

“We have very senior and experienced jurists like the deputy chief justice, justice Luke Malaba, justice Elizabeth Gwaunza and justice Vernanda Ziyambi who are all capable of occupying that prestigious and lofty judicial office,” said Gutu.

Another lawyer, Jacob Mafume, who was the director of constitutional affairs in the prime minister’s office during the coalition government, said the race could be wide open as President Robert Mugabe could come up with a dark horse as he did with the appointment of Chidyausiku himself in 2001.

When Chidyausiku was appointed for the job, he was not even a judge of the Supreme Court, but was judge president of the High Court.

Then, there were senior Supreme judges who included the late Wilson Sandura, who had been tipped to land the post by the majority in the legal fraternity, as well as the late Supreme Court judge, Simbarashe Muchechetere.

Mafume speculated: “They might be targeting (Chinembiri) Bhunu for that post. He has just been elevated (to the Supreme Court bench) or they might also want (George) Chiweshe there. (Paddington) Garwe was a shoo-in but he seems to have upset the establishment for some reason.”

Chiweshe (62) is the current Judge President of the High Court.

Garwe passed the first High Court judgment ordering government to stop farm invasions. This was, however, one of the several court orders that government went on to ignore.

Chiweshe, a liberation war hero known by his war name Yasser Arafat, was deputy to current Zimbabwe Defence Forces Commander, General Constantine Chiwenga during the liberation war.

He was the chairman of the Zimbabwe Electoral Commission (ZEC) and presided over the disputed 2008 harmonised elections. For that reason, he has been abhorred by many within the opposition political parties, who believe he undermined their chances for electoral victory against President Mugabe and his ruling ZANU-PF party.

Results the commission released after five weeks later showed that President Mugabe had been drubbed by MDC-T leader Morgan Tsvangirai who, however, failed to garner enough votes to be declared the winner.

There was a re-run which Tsvangirai later pulled out from. President Mugabe went on to win that election but was forced into a coalition due to legitimacy concerns.

There is also speculation that with Chidyausiku’s pending exit, the country could have its first female chief justice in 55-year-old, Rita Makarau, a very sound jurist whom who made history by becoming Zimbabwe’s first female judge president in 2006.

Makarau currently doubles as the secretary of the Judiciary Services Commission (JSC) and the chairperson of ZEC, where she has had bitter differences with opposition party leaders.
Other senior female judges who could make this history include Gwaunza (62), Ziyambi (the first female Supreme Court judge), Anne-Mary Gowora and Antonia Guvava.

State media reports say Guvava is Chidyausiku’s niece, being daughter to his late scribe brother, Paul Chidyausiku.

Other possible candidates include Supreme Court judges include Ben Hlatshwayo, a former University of Zimbabwe law lecturer, and 63-year-old Bharatkumar Patel.

Patel will be 65 in 2017.

Mafume said although the ruling ZANU-PF had the necessary majority in Parliament to tinker with the Constitution in order to allow Chidyausiku to continue beyond the current legal age limit, this was highly unlikely.

Should Chidyausiku retire, he will go on pre-retirement leave when the constitutional process to fill the vacancy starts.

Gutu explained what the process entails: “Section 180 of the Constitution of Zimbabwe provides for the procedure to be followed when the chief justice, deputy chief justice, the judge president of the High Court and all other judges are appointed.

“Effectively, therefore, what this means is that if there is a vacancy for the office of chief justice, the Judicial Service Commission must advertise the position and invite the President and the public to make nominations. Thereafter, public interviews of all the prospective candidates must be conducted. A list of three qualified persons will then be prepared as nominees for the office; and the list will be submitted to the President. The President will then appoint one of the nominees as chief justice of Zimbabwe.”

Legal analysts, however, pointed out that the process to pick the country’s chief justice would almost certainly be affected by the current factional fights playing out in the ruling ZANU-PF party.

At the time of Chidyausiku’s appointment in 2001, over 200 black lawyers petitioned the JSC against his appointment as the country’s top judge citing his alleged bigamous status.
President Mugabe went ahead to appoint him as the successor of Antony Gubbay, who had been hounded out of office due to the acrimony over the land reform process, over which the judiciary had become a significant factor due to its judgements. Financial Gazette