Makarau appointment questioned

THE tussle between Zimbabwe Electoral Commission (ZEC) and opposition parties pushing for electoral reforms could take a new twist as it is emerging that the appointment of the commission's chairperson, Justice Rita Makarau, may have been done unprocedurally.

Legal experts said Makarau's dual role as both ZEC chairperson and the secretary of the Judicial Services Commission (JSC) were improper because there appears to be conflict of interests between her two full-time jobs.

They said if she was just a Supreme Court judge, then she would have qualified for a seat on ZEC in terms of Section 240 (a), but she is employed by an institution listed under Section 240 (c) as the JSC secretariat.

The other bone of contention is that her appointment to ZEC was not done in consultation with Parliament's Committee on Standing Rules and Orders as required by the Constitution.

"It is an incestuous position that she is in and the honourable thing for her to do is to resign from one of the posts. There is so much conflict of interest," said lawyer and opposition politician, Jacob Mafume.

Government has defended Makarau's appointment to ZEC on the technicality that she qualifies under Sector 240 (a) of the law that bars "public officials other than judges" from being office bearers at ZEC.

However, Makarau is also employed by the JSC, a body whose employees are barred from being ZEC officials under Section 240 (c), which precludes "members and employees of Statutory bodies and government - controlled entities".

The JSC is a statutory body, founded on Section 190 of the Constitution, whose function is to operate the country's judiciary system in addition to tendering advice to government.

A fortnight ago, Makarau stormed out of a crisis meeting with opposition leaders falling under the banner of the National Electoral Reform Agenda (NERA) when she accused its members of abusing and not respecting her.

The emotive meeting had been called by the opposition to seek an explanation over what role government was suddenly going to play in the procurement of biometric voters' registration kits.

The opposition accuse Makarau - a former legislator appointed by President Robert Mugabe - of being sympathetic to ZANU-PF.

During interviews for the Chief Justice posts held in December last year, Makarau defended drawing salaries from ZEC and the JSC saying she believed she was being rewarded for the services she was rendering to both institutions.

This was after the chair of the panel, the then outgoing Chief Justice Godfrey Chidyausiku asked her to respond to allegations of being a "bambazonke" (grab-all) who is double-dipping.

Makarau, who is a Supreme Court (and Constitutional Court) judge, is also the editor-in-chief of the Zimbabwe Law Reports - a publication of the country's legal profession - in addition to being ZEC chairperson.

"I am not trying to grab all, but I think that question should best be answered by the appointing authority… on the allegations of double-dipping, I believe that I am being rewarded for the services that I am rendering," Makarau responded.

During the same interview, Makarau disowned links with ZANU-PF, stridently arguing that her past appointment to Parliament by President Mugabe was purely on professional basis because there had been a problem in the legislature after a member of the Parliamentary Legal Committee had died and there was no other member who was a qualified lawyer to take up that position.

"The appointing authority wanted a female lawyer to take up that seat and I happened to be female at that time and a lawyer as well, so I fitted the bill… it was purely a professional appointment, I did not have to belong to any political party or campaign for it," Makarau said.

At the time of her appointment in February 2013, Veritas, a respected legal and legislative watchdog, pointed out that Makarau's appointment had been done unprocedurally and therefore an illegality.

"The President cannot legally make either appointment until both the Judicial Service Commission and the Parliamentary Committee on Standing Rules and Orders have been consulted," Veritas pointed out.

Lawyers canvassed by the Financial Gazette said with disputes of electoral nature always ending up in courts, this makes Makarau's situation untenable.

The situation could become trickier in the event that detractors, who are unhappy with her role at ZEC, try to approach the same courts that are under her direct administration to force her to step down from the elections management body.