President Robert Mugabe is expected to appoint Deputy Chief Justic Luke Malaba as acting Chief Justice (CJ) when the incumbent, Chief Justice Godfrey Chidyausiku, leaves office next week.
Sources in the judiciary said all indications were that the country will have an acting CJ until the constitutional amendment process that government is in the process of bulldozing through comes to an end.
The amendments will enable President Mugabe to handpick a CJ of his own choice.
“Malaba is most likely to be appointed acting CJ, not substantive Chief Justice,” a source told the Financial Gazette this week.
In terms Section 181 of the Constitution, when the CJ leaves office the deputy is elevated to the position in an acting capacity until a substantive officer bearer has been appointed.
In the absence of the deputy CJ, the most senior judge of the Constitutional Court takes over in an acting capacity.
Ironically, Malaba emerged the front-runner in the race to succeed Chidyausiku who reached the retirement age of 70 this month.
He scored 92 percent in the interviews conducted by the Judicial Service Commission in terms of Section 180(2) of the Constitution, followed by Justice Rita Makarau with 92 percent while another contender, Justice Paddington Garwe was placed a distant third at 54 percent.
The three names have been forwarded to President Mugabe so that he can appoint Chidyausiku’s successor in terms of the Constitution.
However, the process has run into trouble as the Executive has started a process to amend the Constitution to give the President a freehand to choose the CJ, the deputy Chief Justice and the Judge President of the High Court.
Sources said it was highly unlikely that President Mugabe — who has endorsed the on-going Constitution amendment process — will make an appointment in terms of the current clause in the Constitution.
He is expected to appoint Malaba to act as CJ until the amendment gives him unfettered powers to appoint a candidate of his choice.
“If he (President Mugabe) wanted any of those candidates on the list, this amendment process would not have been hurried like what is happening,” the source added.
The process to select the next CJ has been sucked into the vortex of the feral factional fights raging in the ruling ZANU-PF party with one faction supporting the current process while the other is pushing for the amendments that would make it easy for political appointments.
It is believed that current Judge President, Justice George Chiweshe, is the intended beneficiary of the amendment process.
His liberation war background and his previous executive assignments are seen as putting him in a very good stead to be a trusted gatekeeper for some members of the ruling party.
The CJ’s post is key in a democracy as the incumbent is the head of the Judiciary, the third arm of government after the Executive and the Legislature.
Meanwhile, in the on-going consultations on the proposed constitutional amendments, members of the public are roundly condemning the move, saying the country’s Constitution, which came into effect in 2013, is still new to be subjected to the partisan amendments.
Most of the participants are demanding that government should instead focus its energies and resources on aligning the laws to the new Constitution, something that President Mugabe’s government has appeared reluctant to do.
This sets the stage for a heated debate when the Bill is presented in the House of Assembly any time from April where it is expected to sail through despite the public protests because of ZANU-PF’s overwhelming majority in Parliament.
Observers say it would be interesting to watch what the judiciary would be like if President Mugabe proceeds to appoint someone to take over as CJ overlooking Justice Malaba who is not only experienced, but emerged tops in the interviews.
Malaba is regarded as an astute jurist who has an independent mind, something that gives some members of the Executive collywobbles. Financial Gazette