FIVE Supreme Court judges have controversially recused themselves from an appeal hearing in which the Judicial Service Commission (JSC) is challenging High Court Justice Charles Hungwe’s interim interdict preventing it from conducting public interviews for the post of chief justice due to be vacant by the end of this month, it has emerged.
The Zimbabwe Independent gathered this week that Justices Elizabeth Gwaunza, Marie-Anne Gowora, Tendai Uchena, Susan Mavangira and Antonia Guvava have recused themselves from the case.
It is not clear why they did so, but growing political pressure and other improper interventions characterise the process to choose the new chief justice.
The dramatic move, coming against a backdrop of mounting political pressure and brazen trampling on the constitution behind the scenes, at face value suggests judges have a conflict of interest in the matter.
However, the storyline is packed with political chicanery and claims of venality.
The recusals are clouded in a raging storm of controversy engulfing the race to succeed outgoing Chief Justice Godfrey Chidyausiku who leaves office on February 28.
Justice ministry officials say the five judges did not give reasons for recusals to the chief justice
Supreme Court judge Justice Chinembiri Bhunu will also not be part of the bench as he is said to be out of the country on business.
Chidyausiku yesterday confirmed five judges had recused themselves from the case, but said proceedings would go ahead as scheduled on Tuesday. “Yes it is true that five judges have recused themselves,” he said. “The hearing is however going to go ahead with three judges instead of five.”
Legal authorities said the hearing — which will determine whether Chidyausiku’s successor will be appointed through the JSC process or not — will begin on Tuesday before a bench comprising Justices Bharatkumar Patel, Ben Hlatshwayo and Vernanda Ziyambi after some uncertain twists and turns.
Those in the running to replace Chidyausiku include deputy chief justice Luke Malaba, the best candidate on merit, Justice Rita Makarau the frontrunner in official circles and Justice Paddington Garwe. Malaba got 91%, Makarau 90% and Garwe 52% in the interviews. Judge President George Chiweshe boycotted the process.
Chidyausiku will bow out after he was mysteriously forced into early retirement by Justice ministry officials last August before bouncing back in October following President Robert Mugabe’s fortuitous intervention.
The recusals by the judges and Bhunu’s unavailability almost derailed the hearing as a quorum of at least three judges is required on any given case at the Supreme Court. The JSC, the appellant, wanted five judges on the bench given the high profile case’s importance.
Although the Supreme Court bench currently has 13 judges, including the chief justice, Chidyausiku, Malaba, Makarau and Garwe could not hear the matter as they are interested parties.
The four are respondents in the JSC appeal and are thus conflicted.
Chidyausiku was part of the panel which conducted interviews to choose his successor, while Malaba, Makarau and Garwe were interviewees.
The development meant that 10 of the 13 judges could not hear the matter, leaving Patel and Hlatshwayo as the only two available justices since retired Supreme Court judge Vernanda Ziyambi, now appointed a Constitutional Court judge until February next year, was initially out of the radar. But Ziyambi had to be roped in to constitute a quorum. Ziyambi had retired from the bench on November 30 last year.
Sources in the Justice ministry said there were rising tensions over the matter as some judges were being put under undue political pressure over the case entangled in Zanu PF factionalism.
Vice-President Emmerson Mnangagwa, in charge of the justice portfolio, and his Zanu PF faction want Chiweshe to succeed Chidyausiku, while the camp led by Grace Mugabe wants Makarau.
The position of chief justice will be crucial in deciding Mugabe’s succession battle as the issue and related political processes, including electoral matters, might end up in the courts.
Mnangagwa is currently steering a political process to amend the constitution to allow Mugabe to arbitrarily appoint a new chief justice to sabotage the JSC move.
“Due to the seriousness of the matter, there was a request that two more judges be added on top of the usual three to ensure five judges would sit for the hearing.
This was because the application was considered important and thus more legal minds would have helped,” said an inside judiciary source.
“As a result, Gwaunza was allocated the case as the lead judge. Other judges who were allocated the case include Gowora, Patel, Hlatshwayo and Uchena. However, somewhere during the process Gwaunza recused herself followed by Gowora and Uchena.
This only left Patel and Hlatshwayo available for the hearing, thus no quorum could be formed as three judges are required. The judges did not formally notify Chidyausiku that they were recusing themselves.
“Chidyausiku and the Registrar of the Supreme Court (Sithembinkosi Msipa) then slotted Mavangira and Guvava in to join the other two judges (Patel and Hlatshwayo). However, Mavangira and Guvava also recused themselves. To make matters worse, Bhunu indicated he was travelling outside the country for a meeting. To address the problem, Ziyambi who had retired was roped in to join the other two judges and that is the new team — Patel, Hlatshwayo and Ziyambi — which will hear the case.”
A legal expert in the Justice ministry said it was not an issue that the judges did not write to Chidyausiku explaining why they were recusing themselves as the matter was not yet before them, but out of professionalism and courtesy they ought to have done so.
“Normally judges do not have to give reasons for recusal on a case that is not before them. However, in this case they should have written to the CJ as a matter of professionalism and courtesy; it’s not a legal requirement unless the case is before you,” the expert said.
“Given this, one would want to speculate that probably political pressure and self-preservation moved some judges to recuse themselves. There is too much political interference in this case. Some politicians want to use deception or subterfuge to achieve their ends.”
Contacted for comment, Mavangira would not be drawn into commenting on the matter, referring the Independent to Msipa and the JSC.
Guvava also referred the reporter to Msipa, while Uchena and Gwaunza said they were not allowed to speak to the media. Gowora was unreachable on her cellphone.
Msipa said: “I cannot comment. Whatever information you want, write to the JSC.”
Permanent secretary in the Ministry of Justice Virginia Mabhiza yesterday said she was not aware that five judges had recused themselves from the case, although she initially said she had heard about it.
These developments came as lawyers representing University of Zimbabwe law student Romeo Zibani, Venturas & Samukange’s move to challenge the JSC appeal to be removed from the roll hit a snag. Zibani challenged the legality of the JSC public interviews to choose Chidyausiku’s successor in the courts, arguing the process for appointing Chidyausiku’s successor is improper because it involves judges who sit on the JSC.
Zibani’s lawyer Jonathan Samukange wrote to Msipa on January 26 requesting that the JSC appeal be removed from the roll because the date (February 13) set for the hearing was “unlawful and irregular”.
“It is inappropriate to have the appeal heard on the set down date. It is common cause that the present dispute involves the outgoing chief justice, the incumbent deputy chief justice, DCJ Malaba, Justice Garwe and the judge president of the High Court Justice Chiweshe. Naturally and irrefutably these esteemed individuals are senior to the bench that is scheduled to sit and decide the appeal on the 13th of February 2017,” Samukange’s letter says. “Even further, the persons who will sit to hear the appeal are being given the test of determining who their boss should be. This is both legally and ethically inappropriate.
The fact that the incumbent chief justice is still serving makes it inappropriate for the present appeal to be heard. You will be aware that the chief justice as the chairperson of the Judicial Service Commission made the decision to go ahead with the interviews notwithstanding the order of the High Court.
Objectively, the setting down of the appeal and the composition of the bench of the appeal are inimical to the requirement that justice ought to be seen to be done.
The public are at risk of making the assumption, reasonably so, that the incumbent chief justice is driving the whole appeal process.
This is not only undesirable, but contrary to settled law.”
Samukange also charged that the office of the registrar had been compromised.
“The office of the registrar, quite tellingly, appears to have been compromised. It is unprecedented that an appeal noted on the 12th of December 2016 during vacation is set down on the 13th of February 2017. It cannot be put into question that the present appeal for unknown reasons has jumped the queue of other pending appeals and has been given preference. This seriously touches on the credibility of the process,” the letter says.
“Our instructions, in the result, are to demand, as we hereby do, that we have a written undertaking from your esteemed office by close of business on January 27 that the above appeal be removed from the roll in order that the above issues are substantively dealt with.”
In another separate letter to Msipa dated February 2, Samukange said they had not filed his client’s heads of argument in the JSC appeal, arguing that “the matter was not properly set down and the whole process is palpably tainted”.
“Your esteemed office is not functus officio as you remain in charge of the process until it has been finalised. You have the power to set any matter down for hearing and, consequently, to remove any matter from the roll,” the letter says. “We are of the view that the judges of the Supreme Court are not seized with the matter yet until the file has been referred to them. On the basis that the process is devoid of integrity, transparency and apparently unlawful, our instructions are to pursue our client’s rights in terms of the law.”
Responding to Samukange’s request, Msipa said the matter was not going to be removed from the roll despite his fierce protests.
“Please be advised that the matter has been enrolled for the 13th of February 2017 and that it is not going to be removed from the roll. If you still persist with your desire of its removal from the roll kindly proceed by way of an application to the court,” Msipa said.