By Blessings Mashaya
The ruling Zanu PF is deeply divided over proposed constitutional amendments seeking to reinstate President Robert Mugabe’s sole power to unilaterally appoint a new Chief Justice (CJ).
While lapdog State media claimed ruling party MPs were fully behind the envisaged amendments, Higher Education minister Jonathan Moyo rubbished the report, saying there was no caucus meeting before the amendment was gazetted .
“There’s been no caucus for MPs. Amendment gazetted on December 23 when MPs & everyone else had taken end of year break!” Moyo said on microblogging site Twitter.
Zanu PF chief whip Lovemore Matuke said that Zanu PF legislators were fully behind the proposed amendment.
“I think there was a problem on the issue of the appointment of the Chief Justice that the people who should conduct the interviews are the same people who applied for the same job and that was an error,” Matuke said.
Mugabe gazetted Constitutional Amendment Bill (Number 1) last week Friday, seeking to reinstate his singular authority to appoint the head of the judiciary, deputy CJ and judge president of the High Court, even though the 2013 charter dictates that candidates must be interviewed by the JSC.
Justice minister Emmerson Mnangagwa has already come up with a draft Bill which will amend Section 180 of the Constitution to throw away public interviews and give Mugabe wide discretionary powers in appointing a CJ of his choice.
Moyo has also attacked Mnangagwa, who is a qualified lawyer, for not respecting the Constitution.
In justifying the amendments, Justice ministry permanent secretary Virginia Mabhiza argued the drafters of the new charter did not realise that some JSC commissioners could become candidates for the position of the Chief Justice, rendering the interviewing procedure of judges by the JSC “inappropriate.”
“It’s sinister opinion to claim that a lawful JSC process must be suspended pending vague constitutional amendment! VP (Emmerson) Mnangagwa has made it clear on the record that a lawful JSC process is separate from constitutional amendment!”
Moyo said on Twitter. “There was no such failure at all. She (Mabhiza) either does not understand how a peer review mechanism works or is just pushing a political agenda!”
Moyo slammed Mabhiza’s argument as “disingenuous”.
“Disingenuous. If the mischief is juniors interviewing seniors, amend the JSC Act to enable appointment of acting seniors!” the Zanu PF politburo member said.
Three candidates underwent the public interviews, veteran deputy chief justice Luke Malaba, Paddington Garwe, a Supreme Court and Constitutional Court judge; and Rita Makarau, chairperson of the Zimbabwe Electoral Commission (Zec) and secretary of the JSC.
Justice George Chiweshe, a former head of the Zec and reported “hot favourite” of the Munhumutapa establishment, did not turn up for the JSC interviews for unknown reasons.
Mugabe was then supposed to handpick one candidate from three names submitted by the JSC.
The first ever public interviews for the vacant post of Chief Justice held three weeks ago, were conducted under a new regime reflecting Mugabe’s trimmed powers under a new constitution adopted three years ago.
This comes amid reports that both G40, a group of young Turks in Zanu PF which has coalesced around First Lady Grace Mugabe, and Mnangagwa’s faction do not want the outgoing Chidyausiku to hold sway over his successor.
The two factions are locked in a bitter succession wrangle to replace 92-year-old Mugabe.
Chidyausiku reaches the mandatory retirement age of 70 years in February next year.
Legal experts and opposition parties fear that if this section is amended, the independence of the JSC and the modicum of transparency exhibited during public interviews would have been consigned to the dustbin of history.
“The new constitution adopted in 2013 trimmed Mugabe’s powers and no longer allows the nonagenarian to appoint judges on his own.
Constitutional law expert Alex Magaisa said that the intention of the executive to amend the Constitution cannot override the supreme law of the land.
“It is a well-known principle of law that the Constitution is the supreme law of the country.
“The intention of the executive, expressed in an unsigned internal memorandum or draft bill cannot by any means override it.
“No judge applying the basic principle of constitutional supremacy, expressly stated in section 2 of the Constitution, could have found otherwise,” Magaisa wrote on his blog. Daily News