IN a new twist to the race to appoint the country’s Chief Justice (CJ), the Judicial Service Commission (JSC) has hit back at High Court judge Justice Charles Hungwe’s interdict throwing out the commission’s decision to hold interviews for the soon-to-be vacant post arguing that the interviews were constitutional.
By Wongai Zhangazha
The battle to succeed Chief Justice Godfrey Chidyausiku is now widely seen as political as warring factions within the ruling Zanu PF jostle for the highest post in the judiciary.
The JSC, in its submission filed at the Supreme Court on Wednesday, said Hungwe’s ruling was misdirected and a violation of the constitution.
On December 11, Hungwe issued an interdict preventing the JSC from proceeding with scheduled public interviews for the post of CJ on December 12 last year. The interviews went ahead after the JSC filed an appeal to stop the interdict.
Hungwe’s ruling followed a court application by a fourth year University of Zimbabwe law student Romeo Zibani seeking an order to stop the interviews arguing that the process was “unfair” and “not transparent”.
Zibani wants President Robert Mugabe to directly appoint the CJ, arguing that the procedure for appointing Chidyausiku’s successor is improper because it involves judges who sit on the JSC having a say in appointing the head of the judiciary.
In his judgment in the Zibani case, Hungwe indicated that the JSC had erred in refusing to wait and allow Vice-President Emmerson Mnangagwa, who oversees the Ministry of Justice and Legal Affairs, to steer the changes to the constitution.
He further stated that the constitution itself is “work in progress”. Hungwe’s view was 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”.
However, the JSC, in heads of argument filed at the Supreme Court on Wednesday, said there was nothing wrong or unlawful in the process of the selection of the CJ as “eminent jurists on our jurisdiction were properly nominated in response to the advertisement”.
Represented by Addington Chinake of Kantor and Immerman Legal Practitioners, the JSC said under the new constitution an ordinary constitutional bill is not “a walk in the park”, hence Section 180 of the Constitution is the present law.
“In this matter Section 180 of the Constitution of Zimbabwe is clear. All the before the honourable court parties accept that it is in full force and effect. How can a valid constitutional provision which embodies in the supreme law of the land be the subject of an interdict?” argued the JSC.
The commission said the filing of the appeal and the consequent suspension of the interdict were entirely lawful and did not in any way constitute contemptuous conduct on the part of the JSC or its legal practitioners.
The commission said the office of the CJ will fall vacant on March 1 2017 and as a commission they adhered to the constitution as to how the vacancy is to be filled.
If they had failed to adhere to such provisions, the JSC said it would have acted unconstitutionally.
“It is respectfully submitted that no violation of the present constitution of Zimbabwe has occurred. There is no wrong which first respondent (Zibani) can object to and seek to interdict against; his rights have not been violated in any manner, shape or form. The court a quo therefore gravely misdirected itself in granting the interdict,” read the JSC’s heads of argument.
“Zimbabwean courts of law or constitutional bodies are not obliged (as held by the court a quo) to “follow the intentions of the policy maker”.
The JSC said High Court judges are also bound, not only to respect and follow the provisions of the Constitution of Zimbabwe but also to enforce such provisions insofar as they dictate procedures and substantive requirements to be carried out by any constitutional bodies including the commission.
“With respect, it is not within the ambit or scope of power or authority of a judge of the High Court to set aside a clear and unambiguous provision of the constitution of Zimbabwe or to purport to suspend it under the guise of pending executive intent,” JSC said.
“With respect, such a judicial officer would be in fact violating provisions of the Constitution of Zimbabwe by replacing the views of the people of Zimbabwe as recorded in the constitution of Zimbabwe with his or her own views.”
The JSC said the affidavit by permanent secretary in the Ministry of Justice Virginia Mabhiza and the consequent amendment of the order issued by the court a quo have made it “apparent that the sole purpose for seeking the interdict was to allow a proposed Executive intention to amend section 180 of the constitution of Zimbabwe” time to play out.
“Is this a legitimate basis for obtaining an interdict? Can the operation of the constitution of Zimbabwe be suspended for this reason?” queried the JSC.
The JSC said Mnangagwa wrongly issued an Extraordinary Gazette (GN 434 of 2016) on December 23 which was re-gazetted through an Extraordinary Government Gazette Vol XCV No 1 on January 3 2017 under the signature of the Speaker of the National Assembly in compliance with Section 328 (3) of the constitution.