Mugabe faces new hurdle

PRESIDENT Robert Mugabe, whose path to appoint a new chief justice (CJ) was cleared last week after the Supreme Court unanimously quashed a High Court judgment suspending public interviews held in December last year, now faces a new hurdle after Romeo Taombera Zibani filed an urgent application at the Constitutional Court challenging the validity of the bench that dismissed his application last week.

In his application filed on Wednesday, Zibani, through his lawyer Jonathan Samukange of Venturas & Samukange Legal Practitioners, said retired Justice Vernanda Ziyambi was ineligible to sit on the bench having retired on November 30 last year at 70.

Ziyambi, together with Justices Ben Hlatshwayo and Bharat Patel, quashed a judgment by High Court Justice Charles Hungwe suspending public interviews held in December last year to choose a new CJ.

The Supreme Court ruled that the Judicial Service Commission (JSC) was correct at law when it conducted public interviews for the selection of a new CJ. The bench also said the executive is free to amend the constitution to suit its intentions.

However, Zibani, in his urgent application, said Ziyambi was not eligible for re-appointment to sit on the bench as she was now 70 and had retired, bringing yet another new twist to the saga. The latest application is likely to delay Mugabe's appointment of a new CJ, as he awaits the finalisation of the court process.

"Her appointment was therefore unconstitutional. The appointment is in contravention of Section 186(2) which reads as follows: Judges of the Supreme Court, the High Court and any other judges, hold office from the date of their assumption of office until they reach the age of 70 years, when they must retire," argues Zibani in his court papers.

"Retired (Justice) Ziyambi, having reached the age of seventy (70) years, was not eligible for the appointment. The chief justice, I submit with respect, acted unconstitutionally by appointing a retired judge who was not eligible for appointment."
Zibani says the Supreme Court bench, which sat to hear his case on February 13 was not properly constituted.

"The chief justice must have been aware of Section 186(2) of the constitution, but nevertheless decided to abuse his office by making an unlawful and unconstitutional appointment and purported to act in terms of the constitution," argues Zibani. "I submit further that when the Supreme court sat to hear my case on the 13th of February 2017, it was not properly constituted as there were only two judges qualified to hear the case. The sitting did not constitute a Supreme Court bench as is required by law and therefore the judgment by that court is a nullity."

The urgent application cites Mugabe as first respondent, Vice-President Emmerson Mnangagwa as second respondent, Chidyausiku and Ziyambi as third and fourth respondents respectively.

Last week, Justices Patel, Ziyambi and Hlatshwayo set aside Hungwe's judgment in favour of Zibani and substituted it with an order dismissing with costs the University of Zimbabwe law student's interdict application.

Zibani wanted Section 180 of the constitution amended to allow for the president to appoint the CJ, deputy CJ and judge president using his own discretion.

Ziyambi was roped in to constitute a quorum after five Supreme Court judges recused themselves under unclear circumstances from the appeal hearing. Justices Elizabeth Gwaunza, Anne-Marie Gowora, Tendai Uchena, Susan Mavangira and Antonia Guvava recused themselves from the case.

Supreme Court judge Justice Chinembiri Bhunu was also not part of the bench as he was said to be out of the country on business.

Although the Supreme Court bench currently has 13 judges - including the Chief Justice, Chidyausiku - Deputy CJ Luke Malaba, JSC secretary Rita Makarau and Justice Paddington Garwe could not hear the matter as they are interested parties.

The four were respondents in the JSC appeal and were thus conflicted.