THE race to succeed Chief Justice Godfrey Chidyausiku was plunged into chaos this week after Vice-President Emmerson Mnangagwa yesterday said one of the three aspiring candidates had failed, while there is behind-the-scenes speculation that six Supreme Court judges might not be available for the appeal hearing soon under unclear circumstances.
This comes at a time University of Zimbabwe law student Romeo Zibani, who challenged the legality of last year’s public interviews to choose Chidyausiku’s successor, has failed to respond to a Supreme Court appeal by the Judicial Service Commission (JSC) endorsing the interviews.
Zibani, who was cited as the first respondent in the JSC appeal, was supposed to have responded last week in a matter in which the commission is challenging Justice Charles Hungwe’s interim interdict preventing them from conducting public interviews for the post that will be vacant by end of this month.
The interviews went ahead after the JSC filed an appeal at the Supreme Court to stop the interdict.
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.
Mugabe, who is cited as the second respondent, also did not file at the Supreme Court.
Only Vice-President Emmerson Mnangagwa, who presides over the Ministry Justice and Legal Affairs, responded demanding amendment of the constitution to support Zibani’s argument. He was cited as the third respondent.
The case has been set for February 13.
However, sources in the Justice ministry said judges were under political pressure to throw spanners into the works amid speculation of intimidation taking place.
The battle to succeed Chidyausiku, whose term expires later this month, is now widely seen as political. Rival factions within the ruling Zanu PF are jostling to have a candidate of their choice occupying the office.
Mnangagwa’s faction wants Judge President George Chiweshe to succeed Chidyausiku, while the G40 faction, which has coalesced around First Lady Grace Mugabe, is backing JSC secretary Rita Makarau.
In an interview with state media yesterday, Mnangagwa confirmed what the Zimbabwe Independent first reported that Deputy Chief Justice Luke Malaba topped the list with 91%, followed by Makarau on 90%.
Mnangagwa also confirmed Justice Paddington Garwe scored 52%, as correctly reported by the Independent, although he claimed he did not pass.
Names of the successful candidates have been given to Mugabe including that of Garwe’s as one of the candidates who underwent the interview. Sources said Mnangagwa wants Garwe’s name to be removed and replaced by Chiweshe on the shortlist.
The sources said there were some people in political circles plotting to offer judges money in order to sabotage the appeal hearing largely through asking them to recuse themselves.
“Some politicians are trying to offer money to the judges in order to make them recuse themselves. There is quite some level of intimidation taking place. It is like a carrot-and-stick approach. The judges are under extreme pressure from politicians,” the source said.
However, some sources in the Ministry of Justice said some judges were recusing themselves from the case because they thought the process to select the CJ was flawed.
“They are concerned because juniors conducted the interviews for the chief justice’s position …
“In the event that that an aspiring chief justice is appointed what will the working environment be like, knowing that juniors interviewed him or her. That is awkward and gives room to intimidation,” another source said.
Some have argued though that the law remains the law until it is changed, so the current process remains valid until the constitution has been amended.
Contacted for comment yesterday, Makarau said she was not aware that some judges had recused themselves from the appeal case.
“I am not aware of that. In any case they would write directly to the chief justice,” Makarau said.
Permanent secretary in the Justice ministry Virginia Mabhiza also said she was not aware six judges had recused themselves.
The development comes at a time human rights lawyer Beatrice Mtetwa approached the Supreme Court this week seeking to be granted an opportunity to be part of the hearing of the appeal in support of the JSC’s process of public interviews to select a new CJ.
Mtetwa filed an application seeking to be admitted “as a friend of the court”, saying it was the duty of each lawyer to protect the constitution and to observe and support the observance of the rule of law and human rights.
In her founding affidavit, Mtetwa argued that the application filed by Zibani, which was granted by Hungwe, has a severe impact on constitutional democracy as it threatens the supremacy of the constitution. She further argues that the application was faulty in several ways.
She said she is seeking to intervene in the appeal so that constitutional provisions are not suspended at a whim and render the constitution a worthless document.
The JSC, in its arguments, said Hungwe’s ruling was misdirected and a violation of the constitution, adding that 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.
It also 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,” argued the JSC.
“How can a valid constitutional provision which embodies in the supreme law of the land be the subject of an interdict?”
If they had failed to adhere to such provisions, the JSC said it would have acted unconstitutionally.
However, Mnangagwa in his response insisted that the current process to select the CJ is flawed, hence the need for a constitutional amendment.
He said there was no need to rush the interviews because the law is clear on what must be done when the office of the CJ becomes vacant, but does not “impliedly set the timeframe within which such a vacancy must be filled”.