PRESIDENT Robert Mugabe has given Vice President Emmerson Mnangagwa the green light to expedite controversial amendments to the supreme law of the land to facilitate the direct appointment of the next Chief Justice, setting the stage for bruising court battles with civil rights defenders who are against the impending constitutional changes.
Highly-placed sources told the Financial Gazette this week that the ZANU-PF leader who has avoided commenting on the contentious appointment of the country’s top judge ever since the furore over Chief Justice Godfrey Chidyausiku successor broke out, wants Mnangagwa, who also happens to be the Justice Minister, to see through the process of amending the Constitution to give him latitude to handpick the next Chief Justice.
Last month, Cabinet brawled along factional lines at one of its meetings over the controversial amendment with Mnangagwa’s backers throwing their full weight behind the changes while a rival faction, known as Generation 40 (G40), wanted the process to be done in terms of the existing constitutional provisions.
It was on the sidelines of a stormy Cabinet meeting last month that President Mugabe implored the Vice President to hasten the process to enable him to appoint a Chief Justice with the proper orientation and attitude towards the revolutionary party.
There is therefore increasing pressure to disregard the interview process initiated by the Judicial Services Commission (JSC) last year in terms of the current Constitutional provisions for the selection and appointment of the Chief Justice.
“The (Cabinet) meeting had well ended and as ministers lined up to shake hands with him, the President — who had remained silent while emotions ran high in the meeting — got to VP Mnangagwa and said ‘carry on with the process’,” said a Cabinet source who declined to be named.
Information, Media and Broadcasting Services Minister Christopher Mushohwe declined to comment on the matter saying issues discussed in Cabinet were confidential.
“You cannot ask me that. You know very well that Cabinet matters are not discussed with the media. Let the person who told you that furnish you with all the information you need,”
“You want me to violate the rules, no. I will not tell you anything that transpires in Cabinet. I uphold the confidentiality of Cabinet matters,” he added.
Chidyausiku retires after having served for 16 years while his predecessor, Anthony Gubbay, served for 11 years before he was forced to resign in 1992 after falling out with the ruling party over the chaotic land reform programme.
It would appear George Chiweshe, currently serving as president of the High Court, is preferred to take over from Chidyausiku, who is due to retire next month after reaching the mandatory retirement age of 70 years.
Chiweshe boycotted an interview process for the selection of the Chief Justice, only to later indicate that he was complying with a High Court judgment by Charles Hungwe suspending the interview process. He had been shortlisted along with Deputy Chief Justice, Luke Malaba and Supreme Court and Constitutional Court judges Rita Makarau and Paddington Garwe.
Both Makarau and Garwe served as presidents of the High Court before their elevation.
Makarau is currently on secondment at the Zimbabwe Electoral Commission (ZEC), and is the secretary of the JSC.
Hungwe’s judgment followed an urgent High Court application by a University of Zimbabwe law student for a provisional court order stopping the interviews, pending the determination of another application to suspend them until section 180 of the Constitution could be amended.
The applicant challenged the procedure for appointing the Chief Justice, which involved the JSC. It was argued that the procedure was improper because it involved judges who sat on the JSC having a say in appointing the head of the Judiciary.
The applicant said the President should appoint the Chief Justice directly after just consulting with the JSC.
During the hearing of the case, the permanent secretary in the Ministry of Justice, Legal and Parliamentary Affairs, Virginia Mabhiza, produced an affidavit stating that Mnangagwa had submitted documents to Cabinet seeking approval for the amendment of section 180 of the Constitution to change the method of appointing the Chief Justice along the lines proposed by the applicant.
Hungwe then ruled that the interviews should not proceed.
The interviews went ahead after the JSC, headed by Chidyausiku, said it had noted an appeal against Hungwe’s judgment, effectively suspending his order.
Malaba, who became the first Deputy Chief Justice of the Supreme Court after constitutional amendments in 2008, emerged the best candidate in the interviews with a reported score of 91 percent.
Makarau was second with 90 percent, with Garwe coming third after scoring 52 percent.
Under section 180 of the Constitution, the Chief Justice is appointed by the President from a list of three nominees selected by the JSC following advertisements and public interviews.
Sources indicated that there was growing support within a faction of ZANU-PF for President Mugabe to appoint Chiweshe, who had rescued the incumbent from defeat by Movement for Democratic Change (MDC) leader Morgan Tsvangirai in 2008 elections.
Chiweshe, a retired brigadier general, is a war veteran and former military judge who had been seconded to ZEC at the time. He withheld election results for six weeks after President Mugabe had lost the elections to Tsvangirai who, however, failed to garner enough votes to be declared the winner, forcing the presidential election into a runoff.
Tsvangirai had to pull out of the runoff election after several of his supporters were reportedly killed, resulting in President Mugabe winning the poll.
But the political crisis that ensued forced his party to form a coalition government with Tsvangirai and another MDC outfit, then led by Arthur Mutambara. The coalition government collapsed in 2013 following ZANU-PF’s landslide victory.
Chiweshe has the backing of a faction called Team Lacoste, which has rallied behind Mnangagwa to succeed President Mugabe in the event that he leaves office. A rival faction, G40, wants the selection of the Chief Justice to be based on the interview process.
Sources indicated that Malaba, who is 66 years old, has only four years before reaching retirement age, a situation his critics have seized on to argue that his appointment would be untenable.
Malaba is said to have the support of G40, which has lambasted a parallel process.
They argue that Chiweshe, who is 64 years old this year, has six years to serve as Chief Justice.
Makarau, at 56, is the youngest of the candidates.
The G40 faction is said to prefer Makarau in the event that Malaba is not appointed, arguing that this would still be in line with the provisions of the current Constitution.
Makarau would have 14 years before reaching retirement age as a Chief Justice.
Mnangagwa’s backers are banking on planned constitutional amendments to allow President Mugabe to appoint Chiweshe as the new Chief Justice.
The amendment would give the President power to appoint a candidate of his choice.
Analysts said the proposed amendment of the Constitution to allow the President to directly appoint a Chief Justice of his choice had affected confidence in the process.
“The whole process of appointing the Chief Justice is now politicised and lacking public confidence. Whoever is chosen shall bear the burden of proving their independence in an era where all the State arms are heavily politicised,” said political analyst, Rashweat Mukundu.
Constitutional law expert, Love-more Madhuku, said there was a strong possibility that President Mugabe might not even appoint any of the three judges approved by the JSC because of the provision of subsection three of section 80 of the Constitution which says the President can turn down all the names given to him if he is not satisfied with them.
It also emerged this week that the ruling ZANU-PF party was preparing for further Constitutional amendments that would remove term limits for the President.
Under the current Constitution adopted in 2013, the country’s President can only serve two terms of five years each.
In terms of the Constitution, President Mugabe will serve his last term if he is re-elected in 2018 elections.
At the party’s annual conference in Masvingo in December, ZANU-PF did not hide its intentions to tinker with the charter after delegates unanimously resolved that President Mugabe must rule until death.
Such an amendment would certainly court the ire of civil society and opposition political parties, who would be persuaded to approach the courts for relief.
Sources within ZANU-PF also indicated that the party was worried by prospects of an impeachment in terms of section 97 of the Constitution.
They said the party took this “very seriously”.
“That clause of the Constitution will have to be examined,” said one of the sources.