AFTER the swearing in of Luke Malaba as the substantive Chief Justice (CJ) next week, the battleground in the Zanu PF factional fights will now shift to the appointment of a Deputy Chief Justice, a post left vacant by the top judge’s elevation.
By Hazel Ndebele/Kudzai Kuwaza
This comes at a time former Chief Justice Godfrey Chidyausiku was taken ill and has been admitted at the upmarket Avenues Clinic in Harare since Thursday last week.
The Zimbabwe Independent visited the Avenues Clinic and established that the former CJ was admitted to a private ward. Efforts to see him were futile as the news crew was denied access by a nurse who said visits were strictly restricted to close family members.
President Robert Mugabe’s Chief of Protocol Munyaradzi Kajese was also at the hospital during the 10am visiting hour on Wednesday, although it could not be ascertained whether he had come to visit Chidyausiku.
Chidyausiku, who was forced into early retirement before being brought back to office by Mugabe, was influential in the appointment of his successor, a process which was fiercely contested along Zanu PF factional lines between the Vice-President Emmerson Mnangagwa-led camp and the G40, a grouping that has coalesced around First Lady Grace Mugabe.
Battle lines are now drawn over the procedure to appoint Malaba’s deputy.
The Mnangagwa faction, which lost the battle to impose Judge President George Chiweshe as the new CJ, wants the appointment of the deputy CJ to be done after the amendment of section 180 of the constitution is completed.
Section 180 of the constitution states that the deputy CJ should be appointed by the President after the fulfillment of certain processes which include public interviews.
“The Chief Justice, the Deputy Chief Justice, the judge president of the High Court and all other judges are appointed by the President in accordance with this section,” the constitution reads.
“Whenever it is necessary to appoint a judge, the Judicial Service Commission must, advertise the position, invite the President and the public to make nominations, conduct public interviews of prospective candidates, prepare a list of three qualified persons as nominees for the office and submit the list to the President, whereupon, subject to subsection (3), the President must appoint one of the nominees to the office concerned.
“If the President considers that none of the persons on the list submitted to him in terms of subsection (2)(e) are suitable for appointment to the office, he or she must require the Judicial Service Commission to submit a further list of three qualified persons, whereupon the President must appoint one of the nominees to the office concerned,” the constitution further states.
The G40 faction, which wanted Rita Makarau to be appointed CJ, prefers that Malaba’s deputy be appointed in terms of the current constitutional process.
The vicious battle over the appointment of the CJ complicates the process to choose the deputy as two other candidates who were running for the top post, Makarau and Paddington Garwe, may not want to lower their expectations by going for an inferior post.
The process is further complicated by five Supreme Court judges’ recusal from an appeal hearing in which the Judicial Service Commission (JSC) was challenging High Court judge Justice Charles Hungwe’s interim interdict which sought to prevent the JSC from conducting public interviews for the post of chief justice.
Justices Elizabeth Gwaunza, Marie-Anne Gowora, Tendai Uchena, Susan Mavangira and Antonia Guvava recused themselves and this complicates their chances of being selected as Malaba’s deputy through the same process they shunned.
Justice Chinembiri Bhunu failed to sit on the case because he was out of the country at the time.
Vernanda Ziyambi, Ben Hlatshwayo and Bharat Patel quashed a judgment by Hungwe suspending public interviews held in December last year to choose a new CJ.
However, Ziyambi was initially ineligible to sit on the bench, having retired on November 30 last year at 70, but was reappointed just before the hearing in an acting capacity as Constitutional Court judge for a year. Zibani is challenging her re-appointment.