DESPITE Romeo Zibani’s efforts to stall the process to select the country’s new chief justice (CJ) while the exercise to amend the constitution unfolds, President Robert Mugabe is free to go ahead and appoint the head of the country’s judiciary.
By Wongai Zhangazha/Bernard Mpofu
Immediate past CJ Godfrey Chidyausiku retired on Tuesday after reaching the retirement age of 70. The race to succeed him has taken a political twist with factions within Zanu PF making frantic efforts to push for their preferred candidate.
A camp linked to Vice-President Emmerson Mnangagwa wants Judge President George Chiweshe to be elevated to CJ while a faction backing First Lady Grace Mugabe is pushing for the ascendancy of Judicial Service Commission (JSC) secretary Rita Makarau.
Sources in the Justice ministry who spoke to the Zimbabwe Independent this week said Zibani, a University of Zimbabwe law student, had not filed an urgent application at the Constitutional Court (ConCourt), which effectively clears legal hurdles for Mugabe to appoint one of the three prospective candidates who underwent public interviews last year.
The current acting CJ Luke Malaba, Justice Paddington Garwe and Makarau underwent interviews conducted by the JSC, which Zibani and the Justice ministry led by Vice-President Emmerson Mnangagwa are challenging.
“What Zibani filed was an ordinary application which can take months or even years for the hearing to be set. The application has no interdict, meaning that if the president wants to appoint the next CJ he can do so if he wishes,” a source in the Ministry of Justice said.
Sources said particularly interesting would be the issue pertaining to the selection of judges who will sit for the hearing. The ConCourt requires a minimum of nine judges to sit.
“Before the JSC Supreme Court appeal hearing, five judges recused themselves from the case for reasons unknown. What would be of interest is how the judges who refused to hear the appeal will respond when asked to hear Zibani’s application,” the source said.
In his opposing affidavit as third respondent filed on Tuesday at the ConCourt, Chidyausiku said allegations made by Zibani were in disagreement with the law.
“I have read the court application filed under CCZ09/17 by the applicant and subject to the submissions to be made by my legal practitioners of record at the hearing of the matter (in order to assist this honourable court to reach a conclusion on the merits or demerits of the application). I confirm that I will abide by the decision of this honourable court,” reads Chidyausiku’s application.
“For the avoidance of doubt, to the extent that the correct legal position is at variance with the averments made by the applicant in casu, such averments are disputed and/or denied as if traversed seriatim.”
Chidyausiku is represented by Addington Chinake of Kantor and Immerman Legal Practitioners.
In his application filed last week, Zibani, through his lawyer Jonathan Samukange of Venturas & Samukange Legal Practitioners, said retired Justice Vernanda Ziyambi was ineligible to sit on the bench, having retired on November 30 last year at 70.
Ziyambi, together with Justices Ben Hlatshwayo and Bharat Patel, quashed a judgment by High Court Justice Charles Hungwe suspending public interviews held in December last year to choose a new CJ.
The Supreme Court ruled that the JSC was correct at law when it conducted public interviews for the selection of a new CJ. The bench also said the executive is free to amend the constitution to suit its intentions.
However, Zibani, in his urgent application, said Ziyambi was ineligible for re-appointment to sit on the bench as she was now 70 and had retired, citing Section 186(2) of the constitution.
Ziyambi was roped in to constitute a quorum after five Supreme Court judges recused themselves under unclear circumstances from the appeal hearing. Justices Elizabeth Gwaunza, Anne-Marie Gowora, Tendai Uchena, Susan Mavangira and Antonia Guvava recused themselves from the case.
Ziyambi, through her lawyers Dube-Banda Nzarayapenga, also responded to Zibani’s application, also raising the same argument as the immediate past CJ.
Supreme Court judge Justice Chinembiri Bhunu was also not part of the bench as he was said to be out of the country on business.
Section 186(4) of the constitution states: “Even though a judge has resigned or reached the age of seventy years or, in the case of a judge of the Constitutional Court or a judge referred to in subsection (3), reached the end of his or her term of office, he or she may continue to sit as a judge for the purpose of dealing with any proceedings commenced before him or her while he or she was a judge.”
The Independent understands that Ziyambi was appointed a ConCourt judge until February next year.
Meanwhile, Mnangagwa, who also doubles as Justice minister, failed to attend Chidyausiku’s farewell dinner held this week. However, Justice secretary Virginia Mabhiza attended the banquet.
Judges who recused themselves when the Supreme Court threw out Zibani’s initial challenge were present at the banquet.