Chidyausiku acted lawfully on Ziyambi

LEGAL and legislative watchdog, Veritas, says retired Chief Justice (CJ) Godfrey Chidyausiku acted within the confines of the constitution when he gave retired judge, Justice Vernanda Ziyambi, a one-year contract on the bench because the age limit provision only applies to full-time judges.

In its commentary on the way the retired CJ extended Justice Ziyambi's stay on the bench, the watchdog highlighted that Section 186 (3) of the Constitution clearly states that age limit does not apply to judges on short-term contracts.

"Section 168(2) of the Constitution states that if the services of an additional judge are required on the Supreme Court for a limited period, the Chief Justice can appoint a former judge to act as a judge of the court for that period. This is what the Chief Justice did in the case of Mrs Ziyambi: an additional judge was needed to hear the appeal because so many of the Supreme Court judges were either parties to the appeal (and so disqualified from sitting on the court) or had recused themselves. Mrs Ziyambi, as a former judge, was eligible for appointment under section 168(2).

"The fact that she was over the age of 70, and so past the retirement age for judges, is irrelevant. Section 186(3) of the Constitution makes it clear that judges who are appointed for a fixed term in an acting capacity do not have to retire on reaching the age of 70. Mrs Ziyambi was appointed for a fixed term – i.e. for the duration of the appeal proceedings – and so she could serve despite her age," Veritas pointed out.

Veritas pointed out that if Justice Ziyambi had turned down the invitation to continue sitting on the bench, she would have lost her pension because conditions of service for judges require them to avail themselves when asked to do so, even after retirement.

A ZANU-PF activist from Mudzi, Romeo Zibani, who is trying to stop the appointment of the next CJ through public interviews as provided for in the Constitution on the promise of future amendments to allow the president to make appointments of his choice, had his victory in the High Court overturned by the Supreme Court last month. Among the judges that heard the appeal was Justice Ziyambi. This prompted Zibani to challenge the composition of the Supreme Court bench that head the case on the basis that being over 70, she was ineligible to sit as a judge.

This week Vice President Emmerson Mnangagwa, under whose ambit the Justice ministry falls, suggested that Chidyausiku might have acted illegally in extending Ziyambi's tenure.

"It is most unfortunate that the appointment of a new Chief Justice seems to have fallen prey to political factionalism. Even the appearance of political involvement in the appointment process diminishes the authority and prestige that should attach to the office. It is to be hoped that whoever finally becomes Chief Justice will be able to reassert the independence of his or her office and of the judiciary as a whole," Veritas concluded.