Fight over Chief Justice raises questions about JSC’s legality

By Cyril Zenda

As the succession fights playing out publicly in the selection of the country’s next Chief Justice (CJ) continue in ZANU-PF, there are suggestions that if the Judicial Service Commission (JSC) — headed by outgoing Chief Justice Godfrey Chidyausiku — continues to insist on the public interview route it has started, its own legality could be brought into question.

Sources close to the developments told the Financial Gazette this week that members of a ZANU-PF faction commonly known as Team Lacoste, believed to be led by Vice President Emmerson Mnangagwa — who is pushing thorough constitutional amendments that would allow President Robert Mugabe to handpick Chidyausiku’s successor — have started indicating that in the event that the Supreme Court rules in favour of the JSC process, the next strategy would be to attack the legality of the commission based on the manner it was constituted.

Already doing the rounds is a document casting aspersions on the legality of the JSC on the basis that it was not properly constituted since it has had only 11 members since its inception, instead of the 13 provided for in the Constitution.

The two positions on the JSC panel that appear to have been completely ignored are that of a law professor/or senior law lecturer and that of a human resources (HR) expert.

It is understood that the country’s law lecturers nominated Professor Lovemore Madhuku — a University of Zimbabwe law lecturer and a leading constitutional law expert — to be their representatives on the JSC, a development that did not go down well with the appointing authority who decided to leave the slot open, together with that of an HR expert.

The JSC is currently composed of Chidyausiku, his deputy, Luke Malaba, judge president George Chiweshe; Justice Happias Zhou who represents judges; chief magistrate Mishrod Guvamombe who represents magistrates; the chairperson of the Civil Service Commission, Mariyawanda Nzuwah; Lloyd Mhishi, Priscilla Madzonga and Josphat Tshuma (all legal practitioners designated by the Law Society of Zimbabwe); and Priscilla Mutembwa (an accountant designated by the Public Accountants and Auditors Board).The 11th member is the Attorney General (AG), Prince Machaya, who is the government’s legal advisor. Machaya, replaced Johannes Tomana on the JSC panel as the new AG after the latter had been promoted to Prosecutor General (PG) at which point he had to cease being a JSC commissioner as the office of the PG is supposed to be independent. Tomana is currently on suspension from office as he is under an investigation.”

It is this deliberate exclusion of the two representatives that could haunt the JSC with questions being raised on whether or not the commission was properly constituted according to the law.By attacking the composition of the JSC, whoever will have taken aim at the commission would inadvertently turned their gun on the appointing authority as well, who is the President.

That might not spare the Justice Minister, who is Mnangagwa, because the appointing authority is supposed to act on his advice.

A legal expert told the Financial Gazette this week that this is a knotty matter that could bring a whole new dimension to the saga around the appointment of the CJ who will take over from Chidyausiku whose tenure ends on February 28 this year.

“The shortfall could be fatal because it is like you have a Constitution that says Parliament is supposed to have 100 seats, but for some strange reasons, the President decides to have elections in, say 70 constituencies only, and he goes on to swear in the legislators with the other 30 seats not filled. Can he say he has fulfilled the requirements of the Constitution?” asked a lawyer who could not be named for professional reasons.

“This is the case with the JSC as it is currently constituted. It was supposed to be constituted in full at the start and if there were to be vacancies later because of resignations, deaths or any other causes, then this would have been another matter altogether,” he said, adding that there were several such cases from other jurisdictions in the world where such improperly constituted bodies were declared invalid.

What it would also mean is that even decisions made by such bodies would also be invalid.

The lawyer said this legal position has nothing to do with the quorum, which for the JSC is made up of at least seven commissioners.

This is the fate that the JSC faces as ZANU-PF factions tussling to have a say in the choice of the next CJ go for broke.

In the past, Veritas, a legal and legislative watchdog, has expressed concern at the two voids on the JSC panel, which have remained unfilled for a very long time despite being clearly spelt out in Section 198 (1) of the Constitution, describing the situation as “puzzling”.

When he opened the 2017 legal year this week, Chidyausiku, while tip-toeing around the whole matter, which he said was sub judice since it was before the courts, however, made a telling revelation that gave a peep into the shenanigans that have been taking place behind the scenes.

“…I was surprised to receive communication a few days before the interviews were due to commence that an Executive order had been issued ordering the Judicial Service Commission to stop the interviews for filling the post of Chief Justice,” Chidyausiku revealed.

“I responded to the communication, advising that the Executive’s directive could not be complied with without breaking the Constitution and the interviews would proceed as planned and in terms of the Constitution.

“I have since established that the President never issued the alleged Executive order to stop the interviews.”

Coincidentally, after Chidyausiku rebuffed attempts to stop the interviews, a University of Zimbabwe law student, Romeo Zibani, filed an urgent application at the High Court seeking an order to stop the interviews arguing that the process was “unfair” and “not transparent”.

He wanted the law to be changed so that President Mugabe handpicks the CJ, the Deputy Chief Justice and the Judge President.

High Court judge Justice Charles Hungwe granted the order hours before the December 12 interviews were conducted.

In response, the JSC acknowledged the order and noted an appeal against the order in the Supreme Court before proceeding with the interviews.

One of the candidates, Judge President Chiweshe did not turn up, later giving the explanation that he could not have been be part of a process that was illegal.

Chiweshe is said to be Team Lacoste’s preferred choice for the next CJ and it is believed that he is most likely to be the beneficiary of the efforts to amend the Constitution.

In its heads of arguments filed in the Supreme Court last week, the JSC argued that in conducting the interviews, it was applying the law as it exists in the Constitution and there was no way a High Court judge could order the suspension of the Constitution on the grounds of a promised future amendment.

“With respect, it is not within the ambit or scope of power or authority of a judge of the High Court to set aside a clear and unambiguous provision of the Constitution of Zimbabwe or to purport to suspend it under the guise of pending Executive intent,” JSC said.

“With respect, such a judicial officer would be in fact violating provisions of the Constitution of Zimbabwe by replacing the views of the people of Zimbabwe as recorded in the Constitution of Zimbabwe with his or her own views.”

It is in anticipation of a possible negative Supreme Court verdict on the matter that those trying to avoid the interview route are preparing to attack the legality of the JSC itself. This would make it easy for government to ignore the court’s verdict.

What makes legal challenges involving the JSC complicated is the fact that the courts, which are supposed to hear the cases as well as the judges presiding over them, both fall under it.

The Supreme Court judges who will hear the JSC’s appeal against the judgment of Justice Hungwe in the case of Zibani work directly under Chidyausiku and are paid by the same JSC.

Anyone who decides to challenge the legality of the constitution of the body would have to deal with the hurdle presented by this incestuous relationship.

In the past, Tomana, who is being put before a disciplinary tribunal on charges of being unfit to remain the country’s Prosecutor General, has tried to have his case heard before a foreign or retired judge, but the courts have turned down the request. Financial Gazette