Judges shoot down Mnangagwa’s plan

THE Judicial Service Commission (JSC) — which includes top judges — is resisting Vice-President Emmerson Mnangagwa’s Constitutional Amendment (No 1 Bill) 2016 whose main agenda is to amend Section 180 of the four-year-old constitution to allow the president to appoint a chief justice and other senior judges.

By Owen Gagare

Chief Justice Luke Malaba (right) at his swearing in at State House in Harare last week.

Chief Justice Luke Malaba (right) at his swearing in at State House in Harare last week.

Besides giving President Robert Mugabe discretionary power to appoint the chief justice, the amendment also seeks to allow him to handpick the deputy chief justice, judge president and change the hierarchy of courts.

A memorandum written by the JSC, after consulting some judges, says certain areas of the amendment Bill “may have a negative impact on the operation of the JSC and the delivery of justice”.

Although the JSC stayed away from Mnangagwa’s failed attempt to stop the body from conducting public interviews of judicial candidates, before preparing a shortlist for the president to choose from, it highlighted troublesome areas, further complicating the contentious constitutional amendment process.

Zimbabweans, who have attended public hearings by the Fortune Chasi-led Parliamentary Portfolio Committee on Justice, have roundly criticised the Bill, particularly the proposed amendment of Section 180, arguing it is retrogressive as it seeks to reconstruct Mugabe’s imperial presidency.

There have also been questions as to why government was rushing to amend the constitution while dragging its feet in aligning the country’s laws to the constitution.

The Bill has attracted fierce criticism from civil society, lawyers as well as legal and parliamentary affairs watchdogs.

In its memorandum, the JSC questioned Sections 5 and 7 of the proposed amendment Bill, which seek to amend the hierarchy of the courts by making the Labour Court and Administrative Court subordinate to the High Court.

The Bill seeks to insert the proposed amendment into Section 174 of the constitution, but the JSC argues that the section only deals with courts that are established by an Act of Parliament as opposed to those established by the constitution.

“This is borne out by the fact that Sections 166 to 173 of the constitution specifically establish the Constitutional Court, Supreme Court, High Court, Labour Court and Administrative Court. The other courts are not created by the constitution, but by an Act of Parliament, like the Magistrates Court are then bundled together under Section 174 as ‘other courts and tribunals’,” the JSC says.

“Having already been established by the Constitution under Sections 172 and 173, Labour Court and Administrative Court fall outside the ambit of section 174 … It would be improper or even irrational, to say the least, to place a clause subordinating the two courts under a constitutional provision that has nothing to do with the said courts.”

The JSC also questioned why changes should take place given that the courts are manned by judicial officers who have the same qualifications.

“By virtue of being now subordinate to the High Court, and taking into account the provisions of Section 171(1)(b), it would mean that all appeals and reviews from the two courts would now go the High Court. After all, the only reason appeals and reviews from the two courts were going/are going to the Supreme Court, is because the two courts are currently on an equal footing with the High Court,” the JSC says.

“Such a situation may be detrimental to the administration and effective delivery of justice, as it would create excessive workload for a High Court which is already struggling to manage its caseload which seems to be increasing each year.”

The JSC said the High Court carried over 191 opposed matters in 2012, but the figure rose to 623 in 2013, 936 in 2014, 1 347 in 2015 and 1 525 in 2016.

“… And taking into account that the qualifications of the High Court, Labour Court and Administrative Court judges are the same, it may be legally undesirable to have judicial officers who are equal at every level reviewing each other’s work … The current system where the Supreme Court, which is manned by more senior judges, reviews the work of the three courts is more equitable and advantageous.”
The JSC said subordinating the courts to the High Court may not be necessary.

Subordinating the courts could cause a disparity in salaries between already sitting judges and those who will be appointed after the amendment is passed, says the JSC. The commission noted that paragraph 18(6) of the Sixth Schedule to the Constitution maintains salary levels of already appointed judges of the two courts at par with those of their High Court counterparts while Section 188(4) protects the salaries from reduction. However, judges to be appointed after the amendment would most likely receive lesser salaries and benefits.

The JSC says: “It would be inequitable and unjustifiable to have judges sitting in the same court at the same level, doing the same work and bearing equal workload”, being paid on different salary scales.

The commission added that paying different salaries for the same work in the same post may amount to unfair labour practice and unjustifiable discrimination as proscribed by Section 56(4) of the constitution.

The amendments were introduced by the Ministry of Justice, Legal and Parliamentary Affairs presided over by Mnangagwa during a High Court application by law student Romeo Zibani who sought to stop the JSC’s public interviews to select former Chief Justice Godfrey Chidyausiku’s successor.

Zibani said the procedure for appointing the CJ was improper because it involves judges who sit on the JSC having a say in appointing the head of the judiciary and proposed that the president directly appoint the chief justice.
An affidavit by Justice ministry secretary Virginia Mabhiza was produced during the hearing to indicate that government was in the process of amending the constitution.

“While the interviews have been slated for the 12th December 2016 in line with Section 180 of the Constitution, the third respondent (Justice minister) has already set in motion a process of amending the provisions of Section 180 of the Constitution. The amendment seeks to provide that the President will have the discretion of appointing the chief justice in consultation with the Judicial Service Commission,” she said.

Veritas, a lawyer grouping with an interest in legal, constitutional and parliamentary affairs, said the amendments were undesirable.

“The main amendments in the Bill run counter to two fundamental constitutional values laid down in Section 3(3) of the constitution, namely: transparency and respect for the separation of powers,” said the group.
“The current procedure for appointing senior judges is transparent, in that nominees on the short-list for appointment are chosen after public advertisements and public interviews; it also respects the separation of powers in that the nominees are selected by the JSC without interference from the executive or parliament.

“The Bill proposes to replace this process with one where the president is allowed to appoint anyone he chooses, so long as the person is qualified to be a judge — i.e. is at least 40 years old and has either been a judge or a legal practitioner for 12 years or more. The president’s choice of appointee will be a personal one: as pointed out above, he will not have to act on anyone’s advice, even the cabinet’s, in making the appointments though in practice he will probably go along with recommendations made by the minister responsible for justice.

“That means, almost inevitably in Zimbabwe’s current political climate, that partisan considerations will guide appointments of senior judges.”

Veritas also said the amendments would extend the Presidential Powers, which were introduced through successive constitutional changes since 1980.

“In the present constitution, enacted in 2013, the President’s powers have been extended even further: He appoints the heads of the Defence Forces, the Police Service, the intelligence services and the Prisons and Correctional Service without reference to the cabinet — though he must consult the individual ministers responsible for those forces and services,” said Veritas.

“He can also act without reference to Cabinet, or indeed anyone else, when appointing and dismissing members of the service commissions responsible for the public service, the defence forces, the police service and the prisons and correctional service. The same applies to members of the Zimbabwe Land Commission
“He does not have to consult the Cabinet, or anyone else, when deploying the Defence Forces inside or outside the country, though after deploying them he has to tell parliament why he did so. He merely consults the cabinet, and does not have to act on its recommendation, when granting pardons. He also acts in his own personal discretion when calling elections and referendums, when conferring honours and awards and when appointing ambassadors.”

Ongoing amendments to the law governing the operations of the National Prosecuting Authority (NPA), which also falls under the justice ministry, have also raised a stink.

The ministry intends to abolish the post of national director of public prosecutions and introduce provision for posts of more than one deputy prosecutor-general.

According to the proposed draft Bill, “the board, in consultation with the minister (of Justice), shall determine to which posts it assigns the national director of prosecutions and the deputy national director of public prosecutions … There shall be deputy prosecutors-general appointed in terms of Section 8 of the National Prosecuting Authority Act”.

Sources in the NPA fear that the amendments will allow Mnangagwa, to appoint senior NPA staff, including the deputy prosecutors-general (PGs), which would be undesirable if not unconstitutional.

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