THE race to succeed Chief Justice Godfrey Chidyausiku, who will reach the mandatory retirement age of 70 in February 2017, is hotting up amid indications that two of the most senior Supreme Court judges may be ruled out of the race as they are nearing retirement.
By Owen Gagare
Although Deputy Chief Justice Luke Malaba is seen as a natural successor to Chidyausiku given his position and the fact that he is an experienced and competent jurist, a source in the Judicial Service Commission (JSC) says he will reach retirement age “in the next two years”, ruling him out of the race.
The third most senior Supreme Court judge, Justice Vernanda Ziyambi, who was appointed a High Court Judge in November 1993 and has served on the Supreme Court bench since 2001, is retiring this year, effectively ruling her out.
The JSC last week announced that a vacancy of Chief Justice of the Republic of Zimbabwe had arisen by operation of law with effect from March 1 2017.
“In terms of section 180 (2) of the Constitution of Zimbabwe, members of the public are hereby invited to nominate suitably qualified persons to fill the above position,” said the JSC.
The Independent understands there is serious behind-the-scenes political lobbying ahead of President Robert Mugabe’s appointment of the chief justice. The Zanu PF factions have an interest in the appointments with the faction led by Vice-President Emmerson Mnangagwa, who also doubles as Justice minister, preferring a war veteran while the G40 faction, which has coalesced around First Lady Grace Mugabe, wants a chief justice sympathetic to the faction’s cause.
Mugabe reportedly wants a “politically correct” chief justice.
Although section 180 (2) of the constitution makes it mandatory for the JSC to advertise the position, invite the President and the public to make nominations and conduct public interviews of prospective candidates, the president has the final say on who gets the post, making the appointment political.
After exhausting the procedures, the JSC is expected to “prepare a list of three qualified persons as nominees for the office and submit the list to the president” for appointment of one of the nominees.
Section 180 (3) empowers the president to reject the nominees if he so wishes.
“If the President considers that none of the persons on the list submitted to him in terms of subsection (2)(e) are suitable for appointment to the office, he or she must require the Judicial Service Commission to submit a further list of three qualified persons, whereupon the President must appoint one of the nominees to the office concerned,” reads the constitution.
Other than the fact that he is nearing retirement age, Deputy Chief Justice Malaba is considered a politically incorrect judge, after he and Justice Bharat Patel dissented with a Constitutional Court judgement directing President Robert Mugabe to hold elections by July 31 2013, despite the court finding that Mugabe was in breach of his constitutional responsibilities.
Malaba said the decision “defied logic”.
“That is a very dangerous principle and has no basis in law. The principle of the rule of law just does not permit such an approach,” said Malaba.
“…I however refuse to have wool cast over the inner eye of my mind on this matter.”
Despite his inexperience, Judge President George Chiweshe is considered one of the front runners for the position.
Chiweshe is a retired brigadier-general who was appointed to the bench in 2001. During his time in the army, he was responsible for military tribunals.
He is a war veteran and a Zanu PF loyalist.
Chiweshe was Zimbabwe Electoral Commission (Zec) chairperson between 2005 and 2008. He presided over the sham 2008 elections where Zec failed to release presidential election results for a month, amid allegations that the commission tampered with figures to rescue Mugabe and Zanu PF from defeat.
Mugabe lost the first round of elections to MDC-T leader Morgan Tsvangirai who, however, officially failed to get the required 50 plus one vote to be declared president, prompting a runoff. Mugabe claimed victory of the run-off after Tsvangirai pulled out of the race, citing widespread violence and intimidation of his supporters.
Also in the running for the job is Justice Elizabeth Gwaunza, widely regarded as an experienced and competent judge.
She was appointed to the High Court bench in 1998.
Justice Gwaunza has served as a Supreme Court judge since November 2002.
Another vastly experienced judge in the running is Justice Paddington Garwe who was appointed to the High Court in 1993.
Garwe is a former Judge President of the High Court and was appointed to the Supreme Court in in 2006.
Justice Rita Makarau who is the Zec chairperson and JSC secretary, is also a strong contender for the job. She is the sixth most experienced judge on the Supreme Court bench after Chidyausiku, Malaba, Ziyambi, Gwaunza and Garwe.
Makarau is widely regarded a sound jurist, who made history by becoming Zimbabwe’s first female judge president in 2006.
She was appointed High Court judge in December 2000 where she served for 10 years before being appointed a Supreme Court judge in 2010.
“Although the odds are against Malaba, he is still in the running, but other strong contenders would be Chiweshe, Makarau, Gwaunza and Garwe because of the combination of experience, competence and political consideration,” a source said.
“But because the president has the final choice, other experienced judges in the Supreme Court may also find the door open.”
Judges on the Supreme Court bench include Justice Marie-Anne Gorowa who was appointed in 2012. She was appointed a High Court judge in 2000.
Justice Ben Hlatshwayo was appointed to the Supreme Court bench in 2013 after serving in the High Court since 2000.
Justice Patel, who along with Deputy Chief Justice Malaba disagreed with fellow Constitutional Court judges over the July 2013 election judgment, was appointed in 2013. He was appointed High Court Judge in 2004.
Justice Antonia Guvava was also appointed to the bench in 2013 and had served as a High Court judge since 2001.
Justices Tendai Uchena, Chinembiri Bhunu and Susan Mavangira were appointed to the Supreme Court in 2015.