BY TINASHE KAIRIZA/ANDREW KUNAMBURA
PRESIDENT Emmerson Mnangagwa this week flexed his muscles by appointing five judges to the Constitutional Court (ConCourt) at a time Zimbabwe is paralysed by a constitutional crisis triggered by a recent High Court ruling that nullified the extension of former Chief Justice Luke Malaba’s tenure.
In an unexpected move, Mnangagwa named Justices Paddington Garwe, Rita Makarau, Ben Hlatshwayo, Anne-Marie Gowora and Bharat Patel to the ConCourt bench, a week after High Court judges Justices Happias Zhou, Edith Mushore and Jester Helena Charehwa nullified the extension of Malaba’s term of office by five years after reaching the age of retirement, previous set at 70.
The quintet was sworn in yesterday.
The Chief Justice and Deputy Chief Justice will also be part of the Concourt.
Although the government has since appealed the ruling, the five justices appointed to the ConCourt by Mnangagwa are cited as respondents in the case.
This effectively means that they cannot preside over the appeal, should the matter spill into the ConCourt.
University of London professor of World Politics Stephen Chan said while the cited judges in the matter could not preside over the appeal hearing in the ConCourt, their appointment to the bench was a revelation that Mnangagwa was pursuing a ruling favourable to his political interests.
“It is an accepted jurisprudential principle that people cannot be judge in their own case. The government had first appealed the decision of the High Court to the Supreme Court, until it was rightly pointed out that the appeal should be lodged with the Constitutional Court,” he said.
“The government has the power to appoint judges to the Constitutional Court, but the circumstances of this case indicates that the government is determined not to allow the judiciary to exercise its constitutional function of being a check and balance within a separation of powers. It is determined to get a judicial ruling that fits its political purpose.”
In an interview with our sister paper NewsDay yesterday, law lecturer at the University of Kent, Alex Magaisa, also highlighted that the affected judges could not be part of the impending appeal hearing.
“They cannot sit in court to make a determination in this particular case because all the judges are cited in the court application and they are part of the appeal,” Magaisa said.
“They don’t have power to sit in a case in which they are also parties to that action. The same argument holds, it doesn’t change, that we are in a constitutional crisis.”
Following the landmark ruling, which subsequently saw Justice Elizabeth Gwaunza assuming the influential Chief Justice post in an acting capacity, Justice minister Ziyambi Ziyambi claimed that the judiciary was captured by foreign agents.
Ziyambi’s utterances drew criticism, mainly from the opposition and civic society.
However, in a dramatic volte face, Mnangagwa, through micro-blogging site Twitter said the government would uphold the ruling, and respect the independence of the judiciary.
Chan said Mnangagwa’s swift appointment of the justices to the ConCourt following the High Court ruling, exposed a government that was bent on arrogating “increasing powers to itself”.
He said: “Whether proper process was followed in the appointment of the Constitutional Court judges may however be the proper subject of debate.
“In most jurisdictions outside Zimbabwe they would not be the result of purely executive decisions without some form of public review. The indications do seem to be of a government determined to arrogate increasing powers to itself.”
The newly appointed ConCourt judges, formerly of the Supreme Court, were subjected to public interviews in September last year.
Subsequently, the Judicial Service Commission (JSC) made recommendations to Mnangagwa the following month.
The ConCourt was birthed after Zimbabwe adopted a new governance charter in 2013, which Mnangagwa’s administration has been amending in a move widely perceived to be a political strategy to consolidate his iron grip on power.
Prior to Constitutional Amendment No. 2, judges were subjected to public interviews after which the JSC would recommend to the President before appointment.
But following the recent amendments, the President will now directly appoint senior judges.
The amendment also scrapped the running-mate clause before it was tested in an election.
Mnangagwa’s critics, view the amendments as a ploy by the President, who assumed power in 2017 through a military coup that toppled Robert Mugabe, to strengthen his grip on power while keeping his political opponents within the ruling Zanu PF party at bay.
Zanu PF is riven by factional battles pitting Mnangagwa and his deputy Vice-President Constantino Chiwenga.