By Tendai Kamhungira and Gift Phiri
The Supreme Court has slapped down a High Court order which sought to bar the Judicial Service Commission (JSC) from conducting public interviews to choose the country’s next chief justice, ruling that the executive’s plans to amend the law did not in itself nullify the Constitution.
This comes as Parliament is set to begin the process of amending the Constitution to allow President Robert Mugabe to have the sole power to appoint senior judiciary officials.
Current Chief Justice Godfrey Chidyausiku leaves the bench at the end of this month after reaching the mandatory retirement age of 70.
Yesterday, Supreme Court judges Ben Hlatshwayo, Bharat Patel and retired judge Vernanda Ziyambi gave Justice minister Emmerson Mnangagwa’s representative Ephraim Mukucha a torrid time, after asking him to justify the logic of suspending an existing law on the basis of an intended amendment.
“You talk of good governance, is it good governance to suspend the existing laws? Why suspend a law that is legal on the basis of an intention to amend the Constitution which will be made on an unknown date?” Hlatshwayo queried.
He also said that there was no guarantee the amendment was going to be allowed by the people.
“You are not a prophet, (Mr) Mukucha. Do you know how the amendment is going to be finalised? It might be rejected or amended and reiterate the same provisions being challenged,” Hlatshwayo said.
The judges then unanimously agreed to allow the appeal with no costs, thereby setting aside High Court judge Charles Hungwe’s ruling.
In December, Hungwe issued an interdict preventing the JSC from proceeding with the public interviews — although the process still went ahead after the JSC immediately filed an appeal.
Three candidates — Constitutional Court judge Paddington Garwe, JSC secretary Rita Makarau and deputy chief justice Luke Malaba — were subsequently interviewed for the post, with a fourth candidate, High Court Judge President George Chiweshe pulling out of the race at the last minute.
University of Zimbabwe (UZ) law student Romeo Zibani had launched an application five days before the scheduled interviews, seeking to stop the public interviews, resulting in Hungwe delivering his order on December 11, stopping the interviews.
“It occurs to me that where a lawful process leads to an absurd result, in the sense that colleagues select each other for entitlement to public office, as argued by applicant, it cannot be sanctioned on the ground that it is provided for in the law. Such an approach is irrational,” Hungwe ruled then.
But the JSC immediately noted its appeal — led by Addington Chinake of Kantor & Immerman — at the Supreme Court, which suspended Hungwe’s judgment.
At about the same time, Mnangagwa —who is also in charge of the Justice ministry — had through an affidavit that was presented in court stated that he had begun a process to amend Section 180 of the Constitution, to change the process of appointing high level judicial officials.
The battle to appoint Chidyausiku’s successor has since taken a decidedly factional tone, as the ruling Zanu PF’s brawling bigwigs fight to install a candidate acceptable to their respective camps.
The two major Zanu PF factions — Generation 40 (G40) which is rabidly opposed to Mnangagwa succeeding Mugabe and Team Lacoste (the VP’s allies) — see the new chief justice as a key cog in the wheel in the succession battle, should this reach the courts.
Meanwhile, Parliament is forging ahead with plans for its public consultations across the country, with the seven-member portfolio committee on Justice, Legal and Parliamentary Affairs expected to vote on whether to send the proposed Amendment to the full chamber — where it will be deliberated during an extraordinary session.
With the hearings scheduled to start on Friday in Harare via a Senate Chamber session, this will be the first of 11 public hearings conducted by the portfolio committee.
As it is, Zanu PF bigwigs are expected to fast-track the legislation in the hope that both houses will approve it soon, with the National Assembly expected to take up the bill during the first week of March, after Chidyausiku steps down.
A new Constitution produced by an inter-party parliamentary committee agreed by Zanu PF and MDC negotiators before a referendum in 2013 curbed presidential powers by requiring the JSC to conduct public interviews for the vacant post of chief justice, reflecting Mugabe’s whittled down authority under the new Constitution. Daily News