Judiciary caught up in Zanu-PF's succession fights

THE internecine succession wars in the ruling Zanu-PF party have engulfed the selection of a new chief justice (CJ) to replace Godfrey Chidyausiku who retires in February.

The party is split between two factions angling to succeed President Robert Mugabe in the event that he leaves power. One faction, Team Lacoste, is reportedly backing Vice President Emmerson Mnangagwa to succeed President Mugabe, while the other, Generation 40 (G40), is frantically battling to thwart his ascendancy to the most powerful job in the country.

Whoever controls the judiciary has a distinct advantage over his opponents as decisions by the Chief Justice and his bench can make or break political careers.

In a surprise move that has taken many constitutionalists by surprise, a University of Zimbabwe law student, Romeo Zibani, last week mounted a legal challenge to stop the Judicial Service Commission (JSC) from proceeding with interviews to select Chidyausiku's successor.

Zibani challenged the suitability of the interviewing panel and argued that President Mugabe should be given the prerogative to appoint a candidate of his choice.

Mnangagwa, who is also the Minister of Justice, Legal and Parliamentary Affairs, and was cited as a respondent in the case, immediately lodged his answering papers to the challenge, saying government was already in the process of drafting amendments to the Constitution that would allow President Mugabe to appoint the CJ.

Zibani's suit resulted in a High Court order suspending the interviews, but a determined JSC proceeded with the interviews after noting an appeal against the order by Justice Charles Hungwe in the Supreme Court.

Judge President of the High Court, Justice George Chiweshe, who was supposed to be the first to be interviewed, did not turn up.

At the interviews, it emerged that in terms of statistics, Chiweshe delivered only five judgments in four years.

The other judges in the same race are Justice Paddington Garwe, a Supreme Court judge who delivered 34 judgments in the past four years; Justice Rita Makarau, who is currently acting as the secretary of the JSC as well as the chairperson of the Zimbabwe Electoral Commission (ZEC) who delivered 88 judgments during her last four years on the bench where she was Judge President; and Deputy CJ, Luke Malaba, who made 50 judgments in the four years.

Chiweshe, who was chairman of ZEC during the controversial March 2008 harmonised elections, became a butt of jokes at the interview venue, with some in the gallery suggesting that the man who popularised terms such as "meticulous verification" while trying to justify an inordinate five-week hold-up of presidential election results, could have delivered the laughable five judgments in four years because he applied the same "meticulous verification" process in his judicial work.

Since the 2008 election debacle, meticulous verification has become a by-word for suspected electoral rigging in political parlance.

Had Chiweshe attended, it would have been interesting to observe how he would have explained away his semi-retired work rate as well as how he would have answered questions of partisanship. Chiweshe is also a former war veteran.

Makarau, who moved to the electoral body after Chiweshe had left it, had the same questions raised by members of the JSC panel who wanted her reaction to accusations that her background would make her a CJ biased in favour of certain political positions.

The three candidates - Makarau, Garwe and Malaba - managed to defend themselves fairly well, and their names could all end up in the hat from which President Mugabe would have to make his pick. Beyond this stage, it is almost certain that political preferences will now decide who among the three will be chosen.

Despite the timing of his court challenge and the curious coincidences around it, lawyers that spoke to the Financial Gazette said Zibani raised very valid legal points, especially on the propriety of officials from the lower echelons of the judiciary interviewing their prospective bossses. But this, they pointed out, was a horse and cart loophole that some of these wily political players knew about all along and had hoped to use to their advantage.

The lawyers said when the Constitution-making process was underway, the opposition did not insist on a transparent and all-inclusive selection process for the CJ because it was overconfident that it was going to form the next government.

Zanu-PF did not want the process to be transparent for exactly the same reason, but it never foresaw a situation where factionalism within itself would end up with a situation in which the out-going CJ would be perceived to be aligned to one faction over the other.

The strategy of "hiring" people who make a show of being passionate about constitutionalism has been used successfully in the past to advance carefully chosen political moves on the power chessboard.

It was used to precipitate the 2013 elections that ended the inclusive government, when "a Harare man" Jealous Mawarire, now spokesman for Joice Mujuru's Zimbabwe People First party, dragged President Mugabe to the Constitutional Court (ConCourt), saying the President's failure to call for elections was infringing on his rights.

The ensuing ConCourt ruling ordering President Mugabe to call for elections gave the veteran ruler and his party a polite excuse to bring the inclusive government to an abrupt end. In fact, Zanu-PF had always wanted a way to force elections and Mawarire created that opportunity.

What makes the CJ appointment interesting is that whatever form the case may take, it would still end up in the hands of Chidyausiku, who chairs the JSC that has made up its mind to proceed with the selection of the next CJ.

Anyone who disagrees with this view would have to take their protests to the ConCourt, which is also headed by Chidyausiku.

This is again sounding more like the case of Prosecutor General, Johannes Tomana, who after being convicted of contempt of court by the ConCourt bench headed by Chidyausiku, had to meet the same man in his other capacity as JSC chairman examining Tomana's fitness to continue in office.

Among the arguments raised by Zibani was that it does not make sense for lower ranking judicial officers to interview their future boss for the job.

This appeared true during the interviews as those members of the panel who will be working under the new CJ avoided asking probing questions, leaving it to the other members of the panel.

For example, an apologetic Justice Happias Zhou, a representative of judges on the JSC, had to politely ask Makarau to take the panel through her professional journey, something that has been in the public domain since her nomination was made public.

Compare this to commissioner Lloyd Mhishi, who was sworn in as a representative of the Zimbabwe Law Society; he boldly asked Makarau how she intended to extricate herself from the perception that she is sympathetic to Zanu-PF. He asked Malaba to show cause why he should not be viewed as a dissenting judge.

Chief magistrate, Mishrod Guvamombe, a member of the JSC panel, played it safe by appearing to confuse the interviews for a collective bargaining process as he sought to extract some promises of improved conditions of service for the lower tier of the judiciary - the magistrates courts - which he bitterly complained that although it handled more than 80 percent of the judiciary burden, this was not reflected in the distribution of resources.

As things stand, Chidyausiku has nothing to lose, save for his reputation.

For a man who throughout his tenure has struggled to convince detractors that the judiciary is indeed independent of influence from members of the Executive, this process could give him an opportunity to show in a practical way that he is his own man.

While the tussle for control of the political levers of the country continues, anything is possible and, as this goes on, Zimbabwe will continue to be one apple short of a picnic.