The Sunday Mail
Kuda Bwititi Chief Reporter —
President Mugabe should be allowed to nominate and appoint Chief Justice Godfrey Chidyausiku’s successor as Government is in the process of amending the Constitution to introduce the enabling provision, Justice Minister and Vice-President Emmerson Mnangagwa has said.
The Judicial Service Commission wants to interview Justices George Chiweshe, Luke Malaba, Rita Makarau and Paddington Garwe for the post tomorrow on the strength of Section 180 of the Constitution.
However, University of Zimbabwe law student Mr Romeo Zibani is challenging the matter in the High Court, arguing JSC chair Chief Justice Chidyausiku could influence the appointment as he has worked closely with all four nominees in the judiciary for many years.
Mr Zibani also argues that “it is unfair” for Chief Justice Chidyausiku to be part of the panel, and for Justices Chiweshe and Malaba to contest as they are JSC members. He wants the High Court to order VP Mnangagwa to initiate the amendment of Section 180 to allow President Mugabe to use his discretion to appoint a Chief Justice of his choice without going through the public interview process.
Alternatively, he says, an independent panel comprising retired judges, should preside over the interviews. VP Mnangagwa, cited as a respondent in the matter, then filed papers last Friday, clarifying that his ministry was working on a Constitutiona amendment.
The Sunday Mail understands this is to deal with “difficult-to-implement” provisions of the Constitution.
On behalf of VP Mnangagwa and in an affidavit supporting Mr Zibani’s application, Secretary for Justice, Legal and Parliamentary Affairs Mrs Virginia Mabiza told the court that President Mugabe should be accorded the right to appoint the Chief Justice in consultation with the JSC.
Part of the VP’s affidavit reads, “I have read the founding affidavit of Romeo Taombera Zibani and wish to respond to legal issues as follows. Section 180 of the Constitution of Zimbabwe provides for the procedure to be followed in appointing a Chief Justice.
“In terms of that Section, it is the President who does the appointment while the nomination is done by the Judicial Services Commission. Thus the President is required in appointing the Chief Justice to consider only those people who would have been nominated by the Judicial Services Commission.
“In the instant case, while the interviews have been slated for the 12th of December in line with Section 180 of the Constitution, the 3rd respondent (Vice-President Mnangagwa) 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 JSC. That said, 3rd respondent will, however, abide by any order issued by the court.”
Justice Charles Hungwe reserved judgment on the matter. Yesterday, Mrs Mabiza told The Sunday Mail that the ministry was supporting Mr Zibani’s case because Section 180 “was difficult to implement”.
She said, “Since 2014, I have been inundated with requests from different ministries on Constitutional provisions they found to be difficult to implement either because of the drafting or contradictions inherent.
“Section 180 is one such provision we have been working on for some time. Despite the affidavit, it is entirely up to the JSC to decide either to stop the judgment or go ahead with it in the interests of justice.”
Speaking to The Sunday Mail last night, JSC deputy secretary Mr Walter Chikwana said the Commission was going ahead with the interviews.
“We are proceeding with all logistical arrangements for the interviews. There is no court order to stop the interviews, and I have also not received any instruction from the JSC to stop them.”
