The Judicial Services Commission (JSC) proceeded with interviews for the new Chief Justice even though it had been made aware of the Executive’s intention to amend the Constitution to allow the President to appoint the CJ, it has emerged.
It has since been established that the JSC appealed against Justice Charles Hungwe’s ruling barring the holding of the interviews before the judge had given the grounds for his judgment.
The JSC’s appeal now risks legal annulment.
It is still a legal mystery how the JSC noted an appeal in the absence of a full judgment from Justice Hungwe as to why he had granted an application by a University of Zimbabwe law student, Mr Romeo Taombera Zibani, who wanted President Mugabe to appoint a Chief Justice of his choice.
“The Chief Justice (Godfrey Chidyausiku) was privy to the Executive’s intention to amend the Constitution, but proceeded with the interviews,” a source close to proceedings told The Herald yesterday.
“The JSC also noted an appeal without seeing the grounds of Justice Hungwe’s judgment. The JSC acted in contempt of court. That noting cannot stand unless furnished with grounds of the judgment. The panel therefore proceeded on political grounds and not on legal grounds.
“There is also no precedent in other jurisdictions where the Chief Justice is interviewed. They are appointed by the President or Prime Minister.” In the United States of America the President-elect appoints his own bench.
Donald Trump has pledged to “appoint justices …who will protect our liberty with the highest regard of the Constitution…the kind of scholars that we need to preserve the very core of our country and make it greater than ever before”. Even ex-president George W. Bush or his father appointed federal judges.
In the United Kingdom the appointment of the Lord Chief Justice is made by her Majesty The Queen on the advice of the Prime Minister, Deputy Prime Minister and the Lord Chancellor.
In Singapore the Chief Justice is appointed by the President chosen from candidates recommended by the Prime Minister. Closer home in Kenya, the President appoints the Chief Justice in accordance with recommendation of the Judicial Service Commission.
There is therefore no precedent anywhere in the world where the Chief Justice is appointed via interviews. It has also since emerged that it was the MDC-T that pushed for a clause in the Constitution for judges to be interviewed rather than appointed by the President arguing that appointment gave the Head of State and Government too much power.
The interviews were designed to strip the President some of his powers.
“The clause came from the opposition MDC. There was a deadlock on the draft clause at the time of the Constitution making with the MDC pushing for appointment of the Chief Justice through interviews and Zanu-PF arguing for the status quo in the old Constitution. The old Constitution stated that the President, acting on advice of the JSC, appoints the Chief Justice. The MDC argued the President was wielding too much power. Zanu-PF objected but later decided not to uphold its own objection for the sake of making sure the Constitution sailed through. In relenting, Zanu-PF reasoned it would use its majority in Parliament to amend that clause and indeed the 2013 election results gave it the majority to amend that clause in the Constitution,” a source said.
The Constitution is already being amended to empower the President to appoint the Chief Justice. A Bill going through Government motions will soon be tabled before Parliament. Yesterday Zibani’s legal counsel led by Mr Jonathan Samukange of Venturas and Samukange told The Herald their client was weighing his legal options.
“’My client is considering two options. These are – to have the notice (of appeal by JSC) set aside or declared a nullity or to have JSC declared in contempt of court,” said Mr Samukange.
Justice Hungwe granted Zibani’s application on December 11 2016 (Sunday) and indicated he was going to give the reasons later. Justice Hungwe delivered the full judgment on Tuesday. The JSC lawyer Mr Addington Chinake of Kantor and Immerman appealed on Monday before the full judgment was released by Justice Hungwe.”
“As far as I am concerned that appeal is a sham. It is fraudulent and a nullity for the following reasons – in terms of High Court and Supreme Court rules which list requirements for proper notice an grounds of appeal, the grounds of appeal must state in full the grounds. The notice must be accompanied by the judgment appealed against. That notice and grounds of appeal were first announced by Mr Chinake in court after the judge had made one single sentence that “the application is granted”. He stood up and announced that he would be making an appeal the following day. A notice can only be done upon consultation with client. When did Mr Chinake consult the JSC unless they knew the outcome in advance? The JSC is constituted by commissioners in terms of the Constitution – when did the commissioners sit and instructed him to appeal. By that time Justice Hungwe had not given his reasons for granting the application so what were they appealing against? The only conclusion is that the Chief Justice wanted the interview to continue and the notice of appeal was done to misleads the public by saying we are justified in proceeding with the interviews which we all know were a sham,” said Mr Samukange.
Indications are that Samukange will soon approach the High Court or Supreme Court for redress.
“Zimbabwe being a democratic country we believe in the rule of law. The rule of law requires that you follow proper procedures. It does not exempt whether you are a Chief Justice, judge or magistrate. Judges cannot offend the same principles and procedures that they apply to ordinary litigants. They should be exemplary. They have set a bad precedent,” said Mr Samukange.
Source: State Media