By Blessings Mashaya
Justice minister Happyton Bonyongwe has dismissed as baseless and unfounded allegations by the opposition that Zimbabwe Electoral Commission (Zec) chairperson Rita Makarau is compromised by serving as a Supreme Court judge and leading the national elections body at the same time.
The opposition has consistently claimed that Makarau should choose whether or not she would like to remain as Zec chairperson or would like to retain her positions as a Supreme Court judge and secretary of the Judicial Service Commission (JSC), arguing that continuing to have these roles, she is violating the dictates of good corporate governance and international best practice.
“Let me start by highlighting that justice Makarau is a Supreme Court Judge who has risen to this post through her vast experience on the bench, as well as immense dedication and diligence to the legal fraternity. This is indeed very commendable.
“I will now turn on the question why she is also the chairperson of the Zimbabwe Electoral Commission. By virtue of section 238(2) of the Constitution of Zimbabwe, the chairperson of the Zimbabwe Electoral Commission must be a judge or a former judge or person qualified for appointment as a judge,” said Bonyongwe responding to questions in the Senate last week.
“There is therefore, nothing wrong with the appointment of a sitting judge as the chairperson of Zec as this is in line with the Constitution. Where the president exercises his prerogative to appoint a judge to head Zec, the dual roles of judge and head of Zec cannot be avoided nor faulted. “
“It may also be important to note that from the time … Makarau was appointed chairperson of Zec in 2013, she has not sat in court to preside over any matter. In essence therefore, the issue of conflict of roles is unfounded and an unnecessary baseless argument,” added Bonyongwe.
The former Central Intelligence Organisation (CIO) boss said there was no basis to say Makarau would be compromised if the opposition were to contest electoral matters in the court.
“If elections were to be contested in court, there is only one role which … Makarau will play. She will be litigant. Since the coming into force of the 2013 Constitution and the appointment of … Makarau as head of Zec in the same year, numerous election petitions and challenges have been filled in the Magistrates’ Courts, High Court, Supreme Court and the Constitutional Court.
“It is also important to note that despite being a judge, … Makarau does not sit in court. She has been sued in a lot of cases in the courts, in both her capacity as acting secretary of the JSC and head of the Zec. A distinction between the JSC and the Judiciary must clearly be spelt out.
“The JSC is an administrative body which does not give instructions to judges in relation to cases before the courts. It simply provides support to the courts to enhance efficiency and effectiveness. The Judiciary is not answerable to the JSC but to the Chief Justice of Zimbabwe. Judges have security of tenure and have no basis to owe allegiance in any form to the secretary of the Judicial Services Commission. I hope I have clarified these roles,” said Bonyongwe.
Opposition parties coalescing under the banner of the Zimbabwe National Electoral Reform Agenda (Zinera) are demanding sweeping reforms at Zec ahead of the eagerly-anticipated 2018 national elections.
They want the Zec secretariat to be reconstituted arguing that in its current form, it will be biased towards President Robert Mugabe and Zanu PF.
Opposition parties accuse Zec of aiding Mugabe and Zanu PF in the 2008 and 2013 polls, respectively.
In 2008, Zec withheld the results of the presidential election for six weeks — leading to suggestions that it was manipulating the ballot.
Mugabe lost to MDC leader Morgan Tsvangirai who failed to gather an outright victory — forcing a presidential runoff in which the former prime minister in the inclusive government pulled from days before voting citing massive intimidation against his supporters.
In the 2013 elections, African monitors broadly approved the conduct of the election after Zec declared a landslide win for Mugabe and his Zanu PF party, giving Africa’s oldest president five more years at the helm of a nation he has ruled for 37 years now.
Bonyongwe told senators that there was nothing amiss with Makarau being the secretary of the JSC as its structure has not yet been concurred by Treasury and a result, its secretariat did not have permanent staff.
“Makarau is merely on secondment as the acting secretary for the purposes of assisting with the running of the commission’s activities. In view of the level of responsibility required of the office of the secretary, the JSC made a decision that the secretary should be at the equivalent level of a Supreme Court Judge.
“Currently, all members of staff at the JSC are on secondment from various departments. I sincerely hope that it has become clear on the roles that … Makarau plays, which in my view do not conflict in any way. She is a judge of the Supreme Court because this is the post she holds due to her experience and hard work.
“She is chairperson of Zec appointed by the president in fulfilment of the Constitution whereby the chairperson must be a judge and lastly, …Makarau is the acting secretary seconded to the Judicial Services Commission”, said Bonyongwe. Daily News