Let impartiality prevail in chief justice selection

SINCE December 7 2016, when law student Romeo Zibani lodged an urgent application in the High Court seeking a provisional order stopping public interviews to select Retired Chief Justice Godfrey Chidyausiku’s successor until section 180 of the Constitution is amended, the country has witnessed unprecedented drama in relation to the CJ’s succession.

Candid Comment Owen Gagare
ogagare@zimind.co.zw

The drama, laden with political chicanery and several twists and turns, has resulted in the devaluing of the country’s legal system in the eyes of the public while also destabilising the judiciary.

High Court judge Justice Charles Hungwe heard the matter on December 9 before issuing an order stopping the interviews. Hungwe was of the view that section 180 violated the founding values of the Constitution. The justice ministry produced an affidavit at the hearing to the effect that government intended to amend the section.

The JSC however immediately lodged an appeal at the Supreme Court, which automatically suspended Hungwe’s order, paving way for interviews.

The appeal was heard by Justices Bharatkumar Patel, Ben Hlatshwayo and Vernanda Ziyambi, who set aside Hungwe’s judgment and ruled that the JSC should follow the procedure laid out in the Constitution rather than wait on the basis of an intention to amend the constitution.

But the matter was only heard after Ziyambi was roped in to constitute a quorum after five judges controversially recused themselves. Ziyambi retired from the bench in November last year but has been appointed a Constitutional Court judge for a year.

There are allegations some judges recused themselves after succumbing to behind-the-scenes political pressure and other improper interventions.

The CJ’s succession has been a subject of great interest to Zanu PF factions amid revelations that the group led by Vice-President Emmerson Mnangagwa prefers that Judge President George Chiweshe succeeds Chidyausiku, while the faction led by First Lady Grace Mugabe prefers Rita Makarau.

It is therefore not surprising that while the drama was unfolding in the courts, the CJ’s succession dominated debate in cabinet, as Zanu PF factions clashed over the matter.

But the unfolding scenario is unhealthy for the judiciary which should operate on the basis of independence and impartiality.

The politicisation of the appointment process has the undesired effect of devaluing CJ’s office. The ball is thus in Mugabe’s court to ensure the crisis does not persist a day longer. He should without delay appoint a substantive CJ given that the JSC has done its part by interviewing candidates and submitting names as per their mandate.

Although Zibani has filed a Constitutional Court application seeking an order setting aside the Supreme Court’s judgment arguing that Ziyambi’s appointment was unconstitutional, his application does not suspend the ruling.

By dragging his feet, Mugabe is failing to fulfil a key constitutional obligation. But in fulfilling the obligation, merit should be the only yardstick when appointing the CJ.