LUKE Malaba was yesterday sworn in as Chief Justice by President Robert Mugabe at State House in Harare, bringing to an end an acrimonious process which was poisoned by Zanu PF factional fights.
By Kudzai Kuwaza
Malaba replaces Godfrey Chidyausiku, who retired at the end of February.
He scored 91% in public interviews conducted by the Judicial Service Commission to choose Chidyausiku’s successor while JSC secretary Rita Makarau and Justice Paddington Garwe got 90% and 52% respectively.
The interviews were boycotted by Judge President George Chiweshe.
The chief justice’s succession had become a battleground for Zanu PF factions who view the position as strategic in Mugabe’s succession matrix.
A camp linked to Vice-President Emmerson Mnangagwa wanted Chiweshe to be elevated to CJ while a faction backing First Lady Grace Mugabe was pushing for Makarau’s ascendancy.
On December 11 last year, Hungwe issued an interdict preventing the JSC from proceeding with scheduled public interviews for the post. The interviews went ahead after the JSC filed an appeal to stop the interdict.
Hungwe’s ruling followed a court application by a fourth-year University of Zimbabwe law student Romeo Zibani seeking an order to stop the interviews, arguing that the process was “unfair” and “not transparent”.
Zibani wanted Mugabe to directly appoint the CJ, saying the procedure for appointing Chidyausiku’s successor was improper because it involves judges who sit on the JSC having a say in appointing the head of the judiciary.
In his judgment in the Zibani case, Hungwe indicated that the JSC had erred in refusing to wait and allow Vice-President Emmerson Mnangagwa, who oversees the Ministry of Justice and Legal Affairs, to steer the changes to the constitution.
He further stated that the constitution itself is “work in progress”. Hungwe’s view was also that too much independence of the judiciary may not be good for the doctrine of the separation of powers since the former does not “function in a vacuum”.
However, the JSC, in heads of argument filed at the Supreme Court, said there was nothing wrong or unlawful in the process of the selection of the CJ as “eminent jurists on our jurisdiction were properly nominated in response to the advertisement”.
The JSC said under the new constitution an ordinary constitutional bill is not “a walk in the park”, hence Section 180 of the Constitution is the present law.
Justices Elizabeth Gwaunza, Marie-Anne Gowora, Tendai Uchena, Susan Mavangira and Antonia Guvava controversially recused themselves from hearing the matter, necessitating the reappointment of Justice Vernanda Ziyambi. There are allegations that judges were placed under political pressure.
Ziyambi, Ben Hlatshwayo and Bharat Patel quashed the judgment by Hungwe. Zibani is challenging Ziyambi’s re-appointment although the hearing has been now been rendered academic by Malaba’s appointment.