News / National
Zimbabwe court's crisis
13 Dec 2016 at 05:56hrs | Views
The hunt for Zimbabwe's new chief justice was hit by more turbulence yesterday when one of the candidates who was set to be interviewed by the Judicial Services Commission (JSC), Justice George Chiweshe, surprisingly failed to turn up, amid heated debate about the constitutional ramifications of the events of the past two days.
Legal experts who spoke to the Daily News yesterday proffered extensive and varying views regarding Chiweshe's eye-brow raising boycott of yesterday's selection process, as well as the decision by the JSC to appeal and go ahead with the interviews despite the fact that the High Court, which had put the process on ice on Sunday, had not yet given its reasons for reaching its decision.
The JSC is hunting for a new chief justice to replace the long-serving incumbent, Justice Godfrey Chidyausiku, who is retiring from the bench at the end of February next year, after joining the Supreme Court in March 2001.
Those who appeared before the commission yesterday were Deputy Chief Justice Luke Malaba, Justice Paddington Shadreck Garwe of the Supreme Court and Justice Rita Tambudzai Makarau, another judge of the Supreme Court and secretary of the JSC.
However, insiders had claimed in briefings to the Daily News last week that Chiweshe, the Judge President of the High Court, was allegedly the hot favourite of the establishment.
On a dramatic day which saw the lawyers representing the University of Zimbabwe law student Romeo Zibani - who initially queried the
process to choose the country's next head of the bench - criticising the JSC for going ahead with yesterday's interviews, a resolute Chidyausiku told the gathered public and candidates that Chiweshe had not given any reasons for not pitching up for the interviews.
"I observe that one of the applicants is not present. We are not privy as to why he is absent," Chidyausiku said before having Chiweshe's name called out three times.
This did not sit well with Zibani's lawyers, who went on to defend Chiweshe's decision not to attend yesterday's process in Harare.
"Maybe he (Chiweshe) did not want to legitimise something that is illegitimate. If a judge has made a decision as has been done by Judge (Charles) Hungwe in stopping the interviews, that decision binds all judges of the High Court.
"Why would you then expect ... Chiweshe to go against that judgment by attending the interviews?" Ziboni's lawyer, Jonathan Samukange told the Daily News.
He added that in his considered view, the JSC was wrong to say its appeal had set aside Hungwe's judgment because the learned High Court judge had not given his full judgment which at law would have formed the basis of an appeal.
"The argument is that the appeal is invalid. Justice Hungwe has not given his reasons for granting the order. That appeal, as far as I am concerned is intended to defeat the order granted by Justice Hungwe.
"They (JSC) should have waited for the full judgment and then file their appeal," he said.
However, Chidyausiku who is also the chairman of the JSC, defended the commission's decision to go ahead with yesterday's interviews, despite Hungwe's order.
"A request was done to cancel the interviews which the JSC did not accede to, as to do so would have been unconstitutional.
"The appeal has had the effect of suspending the order until the appeal has been determined ...
"The commission subsequently met this morning and has unanimously agreed to continue with the interviews in accordance with the Constitution," he said.
In the court challenge, which sought to stop the interviews, Zibani had argued that the panel set to interview the shortlisted candidates was made up of either friends, colleagues or bosses of the candidates - a situation that he claimed was "incestuous".
The hotly-contested selection of the new chief justice has, as expected - given the succession wars devouring President Robert Mugabe's warring Zanu PF - taken a factional tone, as brawling ruling party factions take their fights to include seeking to determine who becomes the next leader of the bench.
This follows a surprising decision on Friday when the Justice ministry acquiesced to a court challenge by Zibani, who - apart from wanting the court to stop the interviews - is also seeking an order giving Mugabe the power to appoint the country's new all-powerful leader of the bench.
At the same time, Vice President Emmerson Mnangagwa, who also doubles up as Justice minister, sent a memorandum to Cabinet last week, proposing a number of changes to Section 180 - as the Justice ministry came up with a draft Bill to amend the same Section 180 to give Mugabe wide discretionary powers to appoint a chief justice of his choice.
At present, the JSC presides over the selection of judges and derives its powers from Section 180 of the new Constitution, which many legal experts say promotes the independence of the judiciary.
Experts and the opposition fear that if this section is amended, the independence of the JSC and the modicum of transparency that is exhibited during public interviews will be consigned to the dustbin of history.
The new constitution adopted in 2013 trimmed Mugabe's powers and no longer allows the nonagenarian to appoint judges on his own authority.
The Cabinet memorandum prepared by Mnangagwa seeks to convince his colleagues in the executive to embrace the proposed amendments and restore all appointing powers to Mugabe.
"It is proposed by this amendment that the office of Chief Justice, Deputy Chief Justice and Judge President of the High Court be appointed by the President after consultation with the Judicial Service Commission and that the office of Senior Judge of the Labour Court and the Administrative Court be appointed by the Chief Justice," the memo reads.
During the interviews yesterday, Chidyausiku also revealed that of the shortlisted candidates, Chiweshe delivered the least number of judgments in the last four years - with a total of five judgments during that period.
On the other hand, Garwe had delivered 34, Makarau 88 and Malaba 50 during the same period.
Makarau, who is also the chairperson of the Zimbabwe Electoral Commission (Zec), was the second to be interviewed after Garwe - and insisted that "she had her finger on the pulse of the judiciary system in the country".
"If I am selected I want to take it higher than it is now but my reason is to maintain the trajectory of growth," she said.
Legal experts who spoke to the Daily News yesterday proffered extensive and varying views regarding Chiweshe's eye-brow raising boycott of yesterday's selection process, as well as the decision by the JSC to appeal and go ahead with the interviews despite the fact that the High Court, which had put the process on ice on Sunday, had not yet given its reasons for reaching its decision.
The JSC is hunting for a new chief justice to replace the long-serving incumbent, Justice Godfrey Chidyausiku, who is retiring from the bench at the end of February next year, after joining the Supreme Court in March 2001.
Those who appeared before the commission yesterday were Deputy Chief Justice Luke Malaba, Justice Paddington Shadreck Garwe of the Supreme Court and Justice Rita Tambudzai Makarau, another judge of the Supreme Court and secretary of the JSC.
However, insiders had claimed in briefings to the Daily News last week that Chiweshe, the Judge President of the High Court, was allegedly the hot favourite of the establishment.
On a dramatic day which saw the lawyers representing the University of Zimbabwe law student Romeo Zibani - who initially queried the
process to choose the country's next head of the bench - criticising the JSC for going ahead with yesterday's interviews, a resolute Chidyausiku told the gathered public and candidates that Chiweshe had not given any reasons for not pitching up for the interviews.
"I observe that one of the applicants is not present. We are not privy as to why he is absent," Chidyausiku said before having Chiweshe's name called out three times.
This did not sit well with Zibani's lawyers, who went on to defend Chiweshe's decision not to attend yesterday's process in Harare.
"Maybe he (Chiweshe) did not want to legitimise something that is illegitimate. If a judge has made a decision as has been done by Judge (Charles) Hungwe in stopping the interviews, that decision binds all judges of the High Court.
"Why would you then expect ... Chiweshe to go against that judgment by attending the interviews?" Ziboni's lawyer, Jonathan Samukange told the Daily News.
He added that in his considered view, the JSC was wrong to say its appeal had set aside Hungwe's judgment because the learned High Court judge had not given his full judgment which at law would have formed the basis of an appeal.
"The argument is that the appeal is invalid. Justice Hungwe has not given his reasons for granting the order. That appeal, as far as I am concerned is intended to defeat the order granted by Justice Hungwe.
"They (JSC) should have waited for the full judgment and then file their appeal," he said.
However, Chidyausiku who is also the chairman of the JSC, defended the commission's decision to go ahead with yesterday's interviews, despite Hungwe's order.
"A request was done to cancel the interviews which the JSC did not accede to, as to do so would have been unconstitutional.
"The appeal has had the effect of suspending the order until the appeal has been determined ...
"The commission subsequently met this morning and has unanimously agreed to continue with the interviews in accordance with the Constitution," he said.
In the court challenge, which sought to stop the interviews, Zibani had argued that the panel set to interview the shortlisted candidates was made up of either friends, colleagues or bosses of the candidates - a situation that he claimed was "incestuous".
The hotly-contested selection of the new chief justice has, as expected - given the succession wars devouring President Robert Mugabe's warring Zanu PF - taken a factional tone, as brawling ruling party factions take their fights to include seeking to determine who becomes the next leader of the bench.
This follows a surprising decision on Friday when the Justice ministry acquiesced to a court challenge by Zibani, who - apart from wanting the court to stop the interviews - is also seeking an order giving Mugabe the power to appoint the country's new all-powerful leader of the bench.
At the same time, Vice President Emmerson Mnangagwa, who also doubles up as Justice minister, sent a memorandum to Cabinet last week, proposing a number of changes to Section 180 - as the Justice ministry came up with a draft Bill to amend the same Section 180 to give Mugabe wide discretionary powers to appoint a chief justice of his choice.
At present, the JSC presides over the selection of judges and derives its powers from Section 180 of the new Constitution, which many legal experts say promotes the independence of the judiciary.
Experts and the opposition fear that if this section is amended, the independence of the JSC and the modicum of transparency that is exhibited during public interviews will be consigned to the dustbin of history.
The new constitution adopted in 2013 trimmed Mugabe's powers and no longer allows the nonagenarian to appoint judges on his own authority.
The Cabinet memorandum prepared by Mnangagwa seeks to convince his colleagues in the executive to embrace the proposed amendments and restore all appointing powers to Mugabe.
"It is proposed by this amendment that the office of Chief Justice, Deputy Chief Justice and Judge President of the High Court be appointed by the President after consultation with the Judicial Service Commission and that the office of Senior Judge of the Labour Court and the Administrative Court be appointed by the Chief Justice," the memo reads.
During the interviews yesterday, Chidyausiku also revealed that of the shortlisted candidates, Chiweshe delivered the least number of judgments in the last four years - with a total of five judgments during that period.
On the other hand, Garwe had delivered 34, Makarau 88 and Malaba 50 during the same period.
Makarau, who is also the chairperson of the Zimbabwe Electoral Commission (Zec), was the second to be interviewed after Garwe - and insisted that "she had her finger on the pulse of the judiciary system in the country".
"If I am selected I want to take it higher than it is now but my reason is to maintain the trajectory of growth," she said.
Source - dailynews
