THE battle over the succession of Chief Justice (CJ) Godfrey Chidyausiku continues to deepen following clashes in cabinet for the second time running this week between Vice-President Emmerson Mnangagwa’s Zanu PF faction and the rival G40 camp as it has emerged that Deputy Chief Justice Luke Malaba came on top during the interviews.
Sources told the Zimbabwe Independent that fierce clashes erupted in cabinet after Mnangagwa briefed cabinet on the proposed Bill to amend Section 180 of the new constitution to remove the public selection process to allow the president to arbitrarily appoint the chief justice.
The justice minister’s memorandum proposes that the chief justice, deputy chief justice and judge president of the High Court be appointed by the president after consultation with the Judicial Service Commission (JSC).
Mnangagwa last week briefed cabinet on the same issue which was supported by Finance minister Patrick Chinamasa and other members aligned to his faction.
After debate on his memorandum to amend Section 180 of the constitution, ministers aligned to the rival G40 faction, led by Jonathan Moyo, Saviour Kasukuwere and Patrick Zhuwao intensely opposed the proposal.
G40 is engaged in a do-or-die battle for the heart and soul of Zanu PF and its leadership with Mnangagwa’s faction.
“The counter arguments to Mnangagwa’s presentation were threefold, one of them being that his proposals were basically driven by factional agendas and opportunism. The ministers argued that it was all about power politics and not issues of public interest, adding that Mnangagwa’s political manoeuvre would give opposition parties a tool to mobilise support and a rallying point ahead of 2018 elections,” the source said.
“The ministers raised the political implications of the proposals saying what Mnangagwa was doing would either arm and rejuvenate the opposition or create a new opposition front against it. The argument was also that the proposed amendments were not based on principle, but on an agenda to try and impose a particular candidate of their (the Mnangagwa faction’s) choice to the position of CJ at the expense of the constitution and public interest.”
Judicial sources told this newspaper the process to select a new CJ has since been escalated to the justice ministry. It has emerged that Malaba came on top during the interviews.
The controversial process now awaits Mnangagwa as a mere formality to take it further to President Robert Mugabe so that he can use his discretion to appoint a chief justice of his own choice from the shortlisted candidates given to him.
According to the sources, Malaba topped the list with 91%, while Makarau followed slightly behind him with 90% and Garwe had 52%.
“The overall marks have been forwarded to Mnangagwa and he has to take them to Mugabe who, in terms of the constitution, has to choose one from the list. While Malaba got the highest mark, it is now up to the president to choose since he has the discretion,” the source said.
With the powers vested in the JSC in Section 180 of the constitution, the commission has been running the process of selecting the soon-to-retire Chidyausiku’s successor with Malaba, Makarau, Garwe and Judge President George Chiweshe having been shortlisted.
Makarau, Malaba and Garwe were interviewed for the position, while Chiweshe was absent, citing a court application by a law student Romeo Taombera Zibani which sought to stop the process. Zabani is doing an internship at Venturas and Samukange, who are acting for him in the case.
Zibani argued that the procedure for appointing the next CJ is improper because it involves judges who sit on the JSC having a say in appointing the head of the judiciary.
He says the president should appoint the CJ directly after consulting the JSC.
The Mnangagwa faction, which has strong military backing, reportedly prefers Chiweshe to succeed Chidyausiku.
Justice Chiweshe is a war veteran and a former military judge. The G40 faction is said to prefer Makarau.
The selection process was plunged into further controversy after High Court judge Justice Charles Hungwe, in his judgment in the Zibani case, indicated that the JSC had erred in refusing to wait it out and allow the executive to make amendments to the constitution.
This, he argued, is in the interests of transparency and accountability as part of the values that are cited in Section 3 of the constitution.
He also further stated that the constitution itself is “work in progress”. His view is also that too much independence of even the judiciary may not be a good thing for the doctrine of the separation of powers since the former does not “function in a vacuum”.
Hungwe said Mnangagwa must be allowed to steer the changes to the constitution.
A lawyer grouping with an interest in legal and parliamentary issues, Veritas, said it was hard to avoid the conclusion expressed by many commentators, that the CJ case — and perhaps the judgment itself — was motivated by political considerations rather than by a desire to uphold the law.
“Many aspects of the case seem strange. It was known the interviews were scheduled months ago — why was the case taken on the weekend before they were due? A law student hitherto claiming to be impecunious was able to employ senior lawyers in the firm where he was an intern. Why did one of the respondents, who should have been defending the case, assist the applicant by producing an affidavit saying the appointment procedure might be changed in the future?” Veritas questioned.
“Why did the judge give so much weight to an affidavit suggesting a possible future change in the law, instead of applying the law as it stands? This approach was certainly not applied in a recent Constitutional Court case on bond notes.”
The system laid down by the constitution gives far more balance between the three arms of the state, Veritas said.