The intense battle over the appointment of Chief Justice (CJ) Godfrey Chidyausiku’s successor is taking an increasingly factional dimension as the warring Zanu PF camps believe the head of the judiciary will play a pivotal role in interpreting the ruling party and state constitutions in the event of disputes in the post-Mugabe era.
By Wongai Zhangazha
Factions also believe the CJ will be crucial in deciding electoral disputes ahead of, during and after the 2018 general elections should any arise.
Cabinet has been divided over a proposal by the Ministry of Justice, headed by Vice-President Emmerson Mnangagwa, to amend Section 180 of the constitution by removing the public selection process to allow the president to arbitrarily appoint the CJ.
Despite the heated disputes in cabinet, the ministry gazetted Constitutional Amendment Bill (Number 1) last month.
Cabinet ministers, legislators and the military officials, who are backing Mnangagwa’s presidential bid, prefer Judge President George Chiweshe, a war veteran and a former military judge, to succeed Chidyausiku. The G40 faction, which is against the amendment as it sees it as part of Mnangagwa’s succession plot, prefers Judicial Service Commission (JSC) secretary Rita Makarau, hence the clashes in cabinet.
According to a Zanu PF insider, major electoral or succession cases could be brought before the country’s highest courts in the next 15 months and these could end up in the hands of the CJ — and this explains why the factions are vying to influence the filling of the judicial post.
“There are major cases that are going to be likely decided, for instance, contestations over the interpretion of the Zanu PF constitution. There are likely to be battles over interpretation of the ruling party’s constitution and challenges over amendments along factional lines. There are going to be cases over elected leaders or even maybe how the choice of a 90-day interim leader would be implemented,” a senior Zanu PF official said.
“In addition to that there will be several 2018 election cases whether from the opposition or civil society or general public, and internal Zanu PF succession disputes and other cases will end up with the CJ. That is why we are seeing the fight over who takes over the post. It is now or never.”
According to Section 26(2) of the new Zanu PF constitution, an extraordinary session of congress may be convened “in the event of a vacancy occurring in the Office of National President requiring the party to nominate a successor, at the instance of the secretary for administration”.
However, under normal congresses held every five years, it is implied in a section that talks about the composition of the central committee that the president and first secretary of the party is elected nationally by party members after obtaining nominations from at least two provinces.
According to Section 35(1) of the party constitution, the central committee shall among the 300 members comprise “president and first secretary, nominated by at least two provinces and elected nationally by party members for his or her probity, integrity and commitment to the party, its ideology, values, principles and policies”.
This means during normal congresses, a person with at least two nominating provinces will have to win a national primary election in which card-carrying members who, as at December 2014 stood at 866 701, will vote by secret ballot.
The national constitution states that if the president resigns, is incapacitated or dies, the last acting president takes over for 90 days after which his party has to elect a successor for the remainder of the tenure. This is also likely to be a contetious issue in the event it happens when one of the VPs is acting. The issue will be on defining “last acting”.
Constitutional Amendment Bill (Number 1), which is a major source of conflict in government, seeks to change the constitution by providing that the President appoints the CJ, Deputy CJ and Judge President of the High Court without consulting the JSC.
Under Section 180 of the constitution the CJ is appointed by the president from a list of three nominees selected by the JSC following advertisements and the holding of public interviews.
The office of CJ was initially scheduled to fall vacant at the end of February when Chidyausiku retires in terms of the constitution, but his stay has been extended.
The Constitutional Amendment Bill was tabled despite the JSC conducting interviews of candidates shortlisted for the job. These include Deputy CJ Luke Malaba who topped the list after scoring 91%, according to sources. Makarau also did well in the interview with 90% while Justice Paddington Garwe reportedly scored 52%.
Chiweshe did not attend the interviews, citing a court application by a law student, Romeo Taombera Zibani, which sought to stop the process.
According to Section 328 of the constitution the proposed amendment Section 180 of the constitution on the appointment of CJ should be agreed in principle by the cabinet, before a draft amending Bill is prepared. After approval by the Cabinet Committee on Legislation and the cabinet it is then published in the Government Gazette.
At least 90 days will then have to elapse before the Bill can be introduced in parliament, and during that time parliament will have to convene public meetings and make other arrangements for the public to express views on it.
The National Assembly adjourned to January 24.
After being introduced in parliament the Bill will have to be debated by each House in turn and passed by a two-thirds majority at its final reading in the Senate and in the National Assembly.
“If the constitutional process is followed there will be lots of objections since public comments will be required.
It will take at least four to five months and this will obviously go beyond February 2017.
“Unless of course government will just fast track like it has done with other Bills,” a source in government who preferred anonymity said.
In October 2015, Mugabe signed the Labour Amendment Bill into law less than a week after it was stampeded through parliament.