Mnangagwa questions Chief Justice appointment

VICE-PRESIDENT Emmerson Mnangagwa, who presides over the Ministry of Justice and Legal Affairs, has stuck to his guns over the appointment of the Chief Justice (CJ) insisting that the current process is flawed hence the need for a constitutional amendment.

He also questioned the calibre of people, who interview the short-listed candidates for the CJ post under the current constitutional arrangement.

In his response to the heads of argument filed at the Supreme Court a fortnight ago by the Judiciary Service Commission (JSC), in a matter in which the commission is appealing against Justice Charles Hungwe's interdict preventing it from conducting public interviews for the CJ post on December 12, Mnangagwa questioned why the commission was quick to carry out the public interviews when it was aware that there was an executive order to amend the constitution.

Mnangagwa was cited as the third respondent in the matter.

He said there was no need to rush the interviews because the law is clear on what must be done when the office of the CJ becomes vacant but does not "impliedly set the timeframe within which such a vacancy must be filled".

"There was and there is no need for the rush when filing such a crucial post is made. There is a general consensus among the citizens that whilst the procedure laid down under section 180 is laudable, it presents serious challenges when it concerns the appointment of a chief justice," Mnangagwa said in his arguments filed last week.

He questioned whether the CJ should be chosen through public interviews by a panelist as prescribed by the constitution under section 189.

"Clearly section 180 and 189 are clear and not in dispute as they spell out the broad framework within which appointment of a chief justice must be undertaken in the new constitutional dispensation. However the inevitable question arises when one gives serious attention to the process relating to public interviews insofar as section 180 states that all prospective judges and chief justice must be interviewed in public before their appointment," Mnangagwa said.

"One such question is whether in view of a list of panelists who constitute the Judicial Service Commission, the constitution indeed requires that a person to be appointed as chief justice be subjected to public interviews? Is it the intention of those who drafted the supreme law of the land that the prospective candidates for appointment of a chief justice be scrutinised through public interviews before their appointment?"

He said while one can advance the argument that the public interview process is necessary because it ensures transparency and in any case is what the supreme law prescribes, "one should not lose sight to the great respect and responsibilities attached to office of a chief justice".

"A close scrutiny of those who ought to sit as panelists when prospective chief justice is being interviewed leaves a lot to be desired," Mnangagwa said.

"For instance it cannot be said that it is the intention of the drafters of the constitution for the chief justice to be questioned about his or her suitability for appointment by the chief magistrate. That state of affairs is not sustainable. Surely majority of the panelists are likely to have little or no knowledge of the law compared to the person they sit to interview.

"The public expectations and aspirations for good corporate governance cannot be met where a chief justice is subjected to interview by people who are too junior in terms of experience and hierarchy."

Mnangagwa said Hungwe was correct in granting an interdict to stop the conduct of the interviews for the CJ pending the amendment of the constitution.

"There is no way a responsible judge could have ignored evidence from the executive indicating its intention to correct a patent defect in a constitutional provision…… There is nothing novel about the attitude taken by the court in this regard since in other jurisdictions a court can make a provisional order suspending declaration of invalidity of any law of conduct pending remedial action by the relevant authorities," he said.

However, the JSC in its arguments said Hungwe's ruling was misdirected and a violation of the constitution.

Hungwe's ruling followed a court application by a fourth-year University of Zimbabwe law student Romeo Zibani seeking an order to stop the interviews arguing that the process was "unfair" and "not transparent".

Zibani wanted section 180 of the constitution amended to allow for the president to appoint the CJ, deputy chief justice and judge president using his own discretion.
In its arguments, the JSC said there was nothing wrong or unlawful in the process of the selection of the CJ as "eminent jurists on our jurisdiction were properly nominated in response to the advertisement".

The commission also said Hungwe's ruling was misdirected and a violation of the constitution adding that under the new constitution an ordinary constitutional bill is not "a walk in the park", hence Section 180 of the Constitution is the present law.

The matter will be heard and determined by the Supreme Court on February 13.

The battle to succeed Chief Justice Godfrey Chidyausiku is now widely seen as political. This comes as warring factions within the ruling Zanu-PF jostle to have a candidate of their choice occupying the office.

Mnangagwa's faction wants Judge President George Chiweshe to succeed Chidyausiku, while the G40 faction, which has coalesced around First Lady Grace Mugabe is backing JSC secretary Rita Makarau.