CHIEF Justice Godfrey Chidyausiku was a few months ago forced by the Ministry of Justice — overseen by Vice-President Emmerson Mnangagwa — to go on early retirement ahead of his departure next month in a bid to manouevre Judge President George Chiweshe to replace him before President Robert Mugabe intervened to bring him back to preside over the process of selecting his successor.
This revelation brings a new dimension to the twists and turns characterising the race to select a new chief justice (CJ), amid a fierce Zanu PF factional battle to influence and determine the outcome of the process.
Mnangagwa’s faction wants Chiweshe to succeed Chidyausiku, while the G40 faction is backing Judicial Service Commission (JSC) secretary Rita Makarau.
Information obtained by the Zimbabwe Independent shows that Chidyausiku, who turns 70 on March 1, was last August pressured by the Justice ministry to retire without President Robert Mugabe’s knowledge after being told the “executive” had decided he should go early before his official retirement next month.
Chidyausiku, whose pending retirement is on February 28, was written a letter telling him to go and an impression was created that Mugabe had consented to his early retirement. He was then paid money in lieu of his remaining months and also got his pension before being stampeded out of office to allow Chiweshe to become acting CJ ahead of Deputy CJ Luke Malaba.
Sources said the move was calculated at allowing Chiweshe to position himself to become CJ and also to allow him to take charge of the CJ succession process.
A Justice ministry source said in a letter: “The VP thanked him around September for the good work he had done to the system and advised him that he would be paid US$171 000 in cash in lieu of his remaining months.”
Regarding the interview process for selecting a new CJ, it is understood the Chief Secretary to the President and Cabinet, Misheck Sibanda, wrote to Chidyausiku advising him that the executive had issued a directive opposing the process.
“In his response, the CJ made it clear that stopping the process, which was driven by the JSC was ultra vires the constitution. In the same response, he said he wanted to seek audience with the president to advise him on the potential constitutional violations if the JSC process was aborted. This position was not communicated to the president.”
Chiweshe’s appointment was fast-tracked despite Section 181(1) of the constitution which states that “if the office of Chief Justice is vacant or if the office holder is unable to perform the functions of the office, the Deputy Chief Justice acts in his or her place, but if both offices are unable to perform their functions, the next most senior judge of the Constitutional Court acts as Chief Justice”.
Chidyausiku, who is seen by some in Zanu PF and government as a stumbling block to Mnangagwa’s succession ambitions, left under intense pressure and slipped away for about two months until he met Mugabe, by chance, at the former Midlands governor Cephas Msipa’s funeral in Gweru last October.
“Chidyausiku, during a chat with the president, said that he was no longer at work and was made to retire early, a directive he was made to understand was made by the executive. Mugabe was shocked as he said he had no knowledge that he had retired and told Chidyausiku to return to work,” said the source.
“This is when the CJ went back to the JSC and took over the interviews. Adverts announcing that the JSC would soon be conducting interviews for the soon-to-be-vacant post were placed in the media.
“Officials from the ministry were shocked at the end of October when Chidyausiku came back to the office and, since Chiweshe could no longer do the interviews, they had to come up with other interventions. That is when an application was filed at the courts in an attempt to stop the interviews.”
University of Zimbabwe law student Romeo Zibani sought an order to stop the interviews, arguing that the process was “unfair” and “not transparent”. He wants Mugabe to directly appoint the CJ.
On December 11, High Court judge Charles 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.
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 scored the highest mark, it is now up to the president to choose since he has the prerogative.
Mugabe met Chidyausiku after his last cabinet meeting in December to discuss his tenure and the selection of the new CJ.
He used parallel means to set up the appointment after being frustrated by the OPC when he tried to seek an appointment.
“So on December 20, in a meeting after the discussion of a security report presented by (Defence minister Sydney) Sekeramayi because (State Security minister Kembo) Mohadi and (Ignatius) Chombo (Home Affairs) were not there, Mugabe whispered to his deputies that he is leaving because Chidyausiku was waiting for him,” the source said.
“They spoke on the history of the CJ’s tenure and how Chidyausiku helped to make the land reform legal. They agreed that the constitutional route to select the CJ should continue while allowing the constitutional amendment process to proceed, but also agreed it will apply to future processes as it was a long process that would take months.
“The president said by the time the constitution is amended, there will be a new CJ. They discussed the candidates and Makarau is likely to be appointed the next CJ,” the source said.
“In the meantime, in cabinet both factions resolved to wait for the Supreme Court to rule on the appeal by the JSC against Hungwe’s ruling. Only when the matter is decided in court can they make a way forward.”