THE Judicial Service Commission (JSC) has re-submitted the names of judges who underwent public interviews for the post of chief justice to President Robert Mugabe via the Ministry of Justice, after the Supreme Court cleared stumbling blocks this week in line with a standing cabinet decision.
By Wongai Zhangazha
The development came as it emerged that Deputy Chief Justice Luke Malaba is a strong contender on merit to replace Chief Justice (CJ) Godfrey Chidyausiku whose term comes to an end this month even though JSC secretary Rita Makarau is the preferred candidate in the corridors of power.
Malaba will battle it out with Makarau, who is considered a front-runner in official circles and Justice Paddington Garwe. Malaba is the best candidate on merit and also the most experienced judge on the bench.
As first reported by the Zimbabwe Independent, Malaba scored 91%, Makarau 90% and Garwe 52% in the interviews which were boycotted by Judge President George Chiweshe.
Sources in the Justice ministry said soon after the Supreme Court ruling which quashed Justice Charles Hungwe’s judgment in favour of Romeo Zibani, who had sought to stop public interviews to choose the new CJ, the JSC immediately sent again the names of the three judges to Mugabe via the Justice ministry.
“Soon after the ruling, the JSC was asked to resend the names of those who went through the interviews and their results to Mugabe through the Minister of Justice’s office. This is in line with a cabinet decision last year in which ministers from rival Zanu PF factions resolved to wait for the Supreme Court ruling on the appeal by the JSC against Hungwe’s ruling. Mugabe is expected by month-end to appoint a new CJ,” said a source.
The Zanu PF faction associated with Mnangagwa, who oversees the justice portfolio, wants Chiweshe to succeed Chidyausiku, while the camp led by Grace Mugabe wants Makarau.
The CJ could be crucial in deciding Mugabe’s succession battle as the issue and related political processes, including electoral matters, might end up in the courts.
Officials said although the real race initially appeared to be between Makarau and Chiweshe, Malaba is increasingly being seen as a compromise and the right candidate because of his credentials and perceived neutrality.
“There is a growing feeling that Malaba could be appointed CJ to clean up the mess from the fight over the process.
Apart from the fact that Malaba got the highest points, he is also the most senior judge after Chidyausiku. He has written a lot of reportable judgments some of which are being widely quoted. He knows not only the law, but also court administration,” the source said.
“Makarau, although brilliant, is far less experienced. She was fast-tracked through the system. She was once a Zanu PF non-constituency MP. Besides, she is closely associated with the Mugabe family. She has run elections that Mugabe controversially won.”
The developments came as it emerged this week that the judges who recused themselves from the JSC appeal hearing were struggling to explain themselves to colleagues.
Justice Vernanda Ziyambi, who retired from the Supreme Court bench last year, heard the case alongside Justices Ben Hlatshwayo and Bharat Patel after five judges recused themselves.
Justices Elizabeth Gwaunza, Marie-Anne Gowora, Tendai Uchena, Susan Mavangira and Antonia Guvava recused themselves from the case. The JSC wanted five judges to hear the case as it considered the case important, but it had to settle for three judges after the mass recusals.
Malaba, Makarau and Garwe underwent interviews on December 12 last year in accordance with Section 180 of the constitution, despite efforts by a University of Zimbabwe law student Romeo Zibani and the Justice ministry — which is presided over by Vice-President Emmerson Mnangagwa — to derail the process.
In his application at the High Court, Zibani wanted 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.
Mnangagwa, through his lawyer Ephraim Mukucha from the Attorney-General’s office, insisted that the JSC was supposed to suspend its process out of courtesy because the executive had initiated the amendment process.
Hungwe granted an interdict stopping the interviews, but the JSC appealed against the order at the Supreme Court, arguing that the interviews were lawful and in accordance with the constitution. The JSC’s legal victory set aside Hungwe’s judgment, while Zibani’s application was dismissed with costs.
“It is the unanimous decision of this court that the appeal is hereby allowed with no order as to costs. The order of the court a quo (High Court) is substituted as follows: the application is hereby dismissed with costs,” said Justice Patel.
Zibani’s lawyer Sylvester Hashiti, instructed by Jonathan Samukange, was denied right of audience at the hearing after failing to file heads of argument.