Mnangagwa Amendment, and 2016 annus horribilis

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Vice-President Emmerson Mnangagwa

What is worrying is that he (Mnangagwa) is supposed to be a lawyer. Yet he is pushing a policy and an agenda which as a matter of principle has no merit at law.

WHILE 2016 was dominated by the rumbling Zanu PF succession wars, deepening economic problems, liquidity crunch and cash shortages, bond notes (which some deranged people claim are equal to the United States dollar), and simmering social discontent and unrest, it also ending as it started: on a sad note.

MUCKRAKER
Twitter: @MuckrakerZim

The current worsening cash shortages are certainly the most immediate problem affecting Zimbabweans, but there is also something sinister and dangerous playing out in the courts, the corridors of power and legal circles: The selection of a new chief justice.

The issue has far-reaching consequences for Zimbabwean politics and the future of the country if one seeks to unravel its dynamics and what it is all about. It is about power politics, President Robert Mugabe’s succession and how this country will be ruled in the post-Mugabe era.

So instead of focusing on subject matters which the public already knows and are clear about, Muckraker — who wishes all our readers and advertisers a happy Christmas and prosperous New Year (although it sounds cynical in Zimbabwe these days) — will trawl through the constitutional amendment proposal which has now come to be known as the Mnangagwa Amendment in judicial and academic circles.

Shredding constitution

Barely four years after it was adopted by an overwhelming majority (94,5%) — over there million voters — at the 2013 referendum, government has started the process of shredding the new constitution, trampling on constitutionalism and reviving Mugabe’s imperial presidency dismantled through a democratic and popular process.

The trouble is that the whole process, driven by Mnangagwa as vice-presidency in charge of justice, is simply designed and calculated to advance a Zanu PF factional agenda and to try to help the least qualified candidate to become chief justice on partisan and political grounds.

Mnangagwa and his cronies are now behaving like G40 hardliners who support thoughtless and irresponsible policies like indigenisation and seizure of companies.

What is worrying is that he is supposed to be a lawyer. Yet he is pushing a policy and an agenda which as a matter of principle has no merit at law.

There is simply no good reason why the constitution must be amended. Surely, how can a constitution — the supreme law of the land — be amended to advance a parochial succession agenda and help an undeserving candidate to be chief justice? We cannot amend a constitution to elevate mediocrity.

Meritocracy must now be the criteria to select people to run state administration and institutions. Cronyism, patronage, corruption, nepotism, regionalism and tribalism must end. We are sick and tired of this; it has destroyed the country and our children’s future.

The argument that the chief justice knows the candidates and has worked with them, and thus should not be involved in the process — the ridiculous claim of professional incest — is absurd. The president still makes the final decision in terms of the constitution and current process.

The only difference is that the current process gives the president power to appoint the chief justice from a shortlist provided by the Judicial Services Commission (JSC), respects the principle of separation of powers, is open, democratic and based on merit.

That’s what the people want, not a chief justice appointed by the president through his whims and caprices. We cannot sacrifice a good constitution and meritocratic process on the altar of political expediency.

Myths and falsehoods

What is even more worrying is that myths and lies are being peddled to push through this narrow-minded and unsophisticated agenda, which surely will be defeated in the courts of law. No self-respecting judge or lawyer can support such dishonesty and lies.

The whole thing is based on falsehoods. As legal expert Alex Magaisa — who has done a tremendous job unpacking and analysing the issue — the first lie is that section 180 is an MDC clause.

The second myth is that section 180 sidelines president from the appointment process, the third one is that the JSC is not suitable to interview candidates for chief justice, the fourth is that a draft constitutional bill and a memorandum to cabinet overrides the constitution and the fifth is that the Zanu PF factional amendment will supersede or reverse the current constitutional process underway.

Finally, as Magaisa said “the idea of amending section 180 suggests the authoritarian streak of its authors”. It is all about centralisation of power in the office of the president, which Mnangagwa thinks he will occupy soon.

Herald propaganda

Magaisa also tore into the state-controlled daily Herald, which now operates exclusively as a propaganda mouth piece of the Mnangagwa faction.

This must teach Jonathan Moyo a lesson. When he was in charge and using Zimpapers and ZBC to advance partisan Zanu PF agendas, he would not listen to those who complained about unprofessional and toxic coverage of the state media.
Now that he is a victim of the propaganda machinery he used to run and control, hopefully he appreciates that it is always better to manage these things professionally, not like the Pravda. That does not work.

Back to the Herald’s half-truths and lies. In its December 20 edition, the Herald carried “an embarrassingly unbalanced, inaccurate and misleading article on judicial appointments, complete with factual misrepresentations and associated fictions”, Magaisa charged, adding “the Herald’s stock has fallen in the estimation of many discerning readers in recent years largely due to its bias and highly misleading articles like this particular one”.

First, the main headline makes a bold claim that the public interviews of candidates for the chief justice job held last week were a nullity. This false declaration is not backed by any legal or official authority, but it is presented boldly as if it were a fact. Second, the Herald gives the impression that the executive’s intention to amend the constitution has any relevance to the legality of the public interview process. That would set a dangerous precedent.

Third, Herald says the JSC acted in contempt of court by proceeding with the interviews after noting an appeal. The Herald simply does not understand the law.

Fourth, the Herald says there is no precedent anywhere in the world where the chief justice is interviewed. Magaisa says this is crass ignorance. Fifth, the Herald also peddles the false impression that currently the chief justice is appointed by the JSC and not by the president, which is a lie. Sixth and more embarrassingly, the paper comes up with the following line, “in the United States of America, the president-elect appoints his own bench”, another egregious lie. Seventh, it says the judicial appointments provision is an MDC clause, another fabrication.

“Overall, the Herald’s story is a complete disgrace. It misinforms and misleads,” Magaisa says. “It falls into the Trump-like ‘post-truth’ category of politics, in which there is no regard whatsoever for the truth. One can lie openly, without any sense of shame, in order to manipulate public opinion.”

“In this article, the Herald created numerous fictions. It wasn’t out of mere ignorance. This is a deliberate, systematic process of manipulating facts designed to meet a political end. It is one thing to give a different opinion on an issue, but quite another for a public newspaper to manufacture deliberate lies and cast them as news and analysis, which is a new low.”

What a devastating analysis. As they say you may tell the greatest lies and wear a brilliant mask, but you can not escape the eyes of those who see right through you!

Hungwe ruling not just flawed but unsound

I think quoting Magaisa, whose full article we carry in our opinion pages, in full here dissects the issue better.

“Justice Hungwe’s judgment reads more like a mangled political treatise on the supremacy of executive intentions over the constitution — the antithesis of what is expected in a constitutional democracy,” Magaisa says. “Here is a judge basically trashing what he knows is a lawful process. If a judge cannot sanction a constitutional process on the basis that it is provided for in the law, on what other basis would he make the determination?

“…the judgment itself is a mass of contradictions — on the one hand he gives a lecture on the values and principles of the constitution, one of which is the supremacy of the constitution, yet he goes on to deliver a decision which gives priority to the intentions of the executive or politicians ahead of the constitution. It is a weak judgment and that itself is an understatement.”

Hard-hitting analysis indeed. Hungwe’s ruling is not just badly flawed, unsound and hopeless, but also gives hostage to fortune to those who say some judges are partisan and now entangled in Mugabe’s succession battle. Hence, political jurisprudence.

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