Wednesday, 21 December 2016

Zim's Politics and Jurisprudence: Whose Chief Justice is it Anyway?

By Takura Zhangazha*

The Judicial Service Commission recently undertook public interviews for the position of the Chief Justice of Zimbabwe. This was done because the current chief justice is retiring in early 2017.  It was also done in terms of section 180 of the current (new) constitution which empowers the JSC to independently determine who occupies the office. 

A few days prior to the public interviews, a University of Zimbabwe law student, Romeo Zibani filed an urgent high court application seeking to annul the process that the JSC had already begun undertaking in terms of the Constitution.  The arguments given in the court papers were that the JSC could not impartially appoint a nominee to its most important post.  The court papers filed also included an unsigned memorandum of intent to amend section 180 of the constitution to give the president powers of appointing the Chief Justice  from the permanent secretary in the ministry of legal affairs.

The interdict to stop the interviews was granted by Justice Hungwe.   The JSC filed a notice to appeal the interdict and used that as the basis upon which to proceed as planned with the public interviews. The latter were shown live on state television and made for both decent public scrutiny of the candidates that attended (one candidate, Justice Chiweshe did not attend).

Over a week later, Justice Hungwe issued his full judgment in the matter.  In it he indicated his strong persuasion that the JSC had erred in refusing to wait it out and allow the executive to make amendments to the constitution.  This he argues, is in the interests of accentuating transparency and accountability as part of the values that are cited in Section 3 of the constitution.  He also further averred that the constitution itself is a ‘work in progress’, a point that is not only interesting because its coming from a judge but one that underlies perceptions of the supreme law of the land not being perfect.  His view is also that too much independence of even the judiciary may not be a good thing for the doctrine of the separation of powers since, he argues, the former does not ‘function in a vacuum’. 

The case itself has led the media to conclude that the process has been politicized by Zanu Pf factional fights for the office of Chief justice.  Claims that the G40 and Lacoste faction were angling for their preferred candidate hence the court action have however not helped the public image of the judiciary.  And this is regardless of whether the JSC process is confirmed  or dismissed at the Supreme or constitutional court level. 

Social media too has had its say and the verdict is largely similar to that of the mainstream media.  Prominent political personalities have indicated not only their disdain at the Hungwe judgment but insinuated that the maneuvers to stop the JSC process are the work of ‘successionists’. 

These allegations have had a conspiratorial ring to them since the manner in which the challenge has emerged was bound to raise a lot of political eyebrows from the opposition and supporters of  judicial independence. 

There are however a lot of issues to consider beyond the evident politicization of the matter of who becomes Zimbabwe’s next Chief Justice. 

First is the fact that while we as ordinary citizens cannot wade into the legal merits or demerits of the matter which is now the subject of an appeal to a higher court, we can at least note its impact on the meaning of judicial independence, the doctrine of the separation of powers and the democratic meaning of the constitution. 

We can also ask questions as to the veracity of the selection process of the Chief Justice and wonder how the judiciary has come to be in sixes and sevens over section 180 of a relatively new constitution.  

And we must ask just how important is section 3 of the constitution that outlines national values over and above other sections of the constitution. (We should be mindful that some cabinet minsters have used the same section 3 against the freedom of the media)

Furthermore, we have to ask whether the constitution should be amended so soon after a referendum and specifically for what would appear to be expedient purposes.

While we know that eventually it comes down to the judiciary interpreting what the writers of the constitution intended when they wrote section 180 that is used to appoint  the Chief Justice,  it is imperative that it puts on its best legal minds on this particular case.  This is because it can open the floodgates to constitutional amendments as well as elite capture of the judiciary.  And we would do well to always remember Julius Nyerere’s  warning that ‘the mechanisms of democracy are not always the meaning of democracy.’  
*Takura Zhangazha writes here in his personal capacity (takura-zhangazha.blogspot.com0