Appointment of Chief Justice and move to change the constitution

Anticipating the coming vacancy, the Judicial Service Commission [JSC] in mid-October began the procedure laid down by section 180 of the Constitution for the appointment of a new Chief Justice.  Under section 180 the Chief Justice is appointed by the President from a list of three nominees selected by the JSC following advertisements and the holding of public interviews.  In mid October the JSC advertised the position extensively and invited the public [including the President if he wished] to nominate qualified persons.  [Veritas explained the constitutional procedure in Court Watch of 18th October.  That e-bulletin and the JSC’s advertisement  are both available on the Veritas website.  The deadline for the submission of nominations was 31st October.  Note: this method has already been used, in the appointment of judges of the High Court and the Supreme Court.

In early November the JSC published notices announcing the names of the four nominated candidates and stating that on Monday 12th December it would conduct public interviews of the candidates [see Court Watch 9th November].

On Wednesday 7th December, only five days before the interviews were to be held, an urgent application was lodged in the Harare High Court for a provisional court order stopping the interviews pending determination of another application to suspend them until section 180 of the Constitution could be amended.  The applicant is a law student doing an internship at the law firm Venturas and Samukange, who are acting for him in the case.  He challenged the procedure for appointing the Chief Justice – which, as noted above, entails the JSC holding public interviews to select three nominees one of whom must be appointed by the President.  He argued that the procedure is improper because it involves judges who sit on the JSC having a say in appointing the head of the Judiciary.  The applicant would prefer the President to appoint the Chief Justice directly after merely consulting the JSC.  [Note the President would not have to follow their advice.]

On Friday 9th December the urgent application was argued before Justice Hungwe.  During the hearing an affidavit from the Permanent Secretary for Justice, Legal and Parliamentary Affairs was produced, stating that the Vice-President responsible for the Ministry of Justice had submitted documents to Cabinet seeking approval of an amendment to section 180 of the Constitution that would change the method of appointing the CJ along the lines proposed by the applicant.

On the evening of Sunday 11th December Justice Hungwe announced his decision, that the interviews should not proceed and that a detailed written judgment would be issued the next day, Monday.  The JSC immediately informed the judge that an appeal would be noted.  [Written judgment available at this link]

On Monday 12th December Chief Justice Chidyausiku said the JSC had met and decided that as an appeal had been noted Justice Hungwe’s decision was suspended.  The JSC then went ahead with the interviews although one of the candidates, Justice Chiweshe, did not attend.  Justices Garwe, Makarau and Malaba were interviewed, with two hours allocated for each candidate.

Procedure for Constitutional Amendment

If section 180 of the Constitution is to be amended, the proposed amendment will first have to be agreed in principle by the Cabinet.  Then a draft amending Bill will have to be prepared and, after being approved by the Cabinet Committee on Legislation and the Cabinet, will have to be published in the Gazette.  At least 90 days will then have to elapse before the Bill can be introduced in Parliament, and during that time Parliament will have to convene public meetings and make other arrangements for the public to express their views on it.  After being introduced in Parliament the Bill will have to be debated by each House in turn and passed by a two-thirds majority at its final reading in the Senate and in the National Assembly.  All this is laid down in section 328 of the Constitution.

It should be noted that an amendment of section 180 does not have to be approved at a national referendum;  only amendments to the Declaration of Rights and to Chapter 16 (which deals with agricultural land) require a referendum [section 328(6) of the Constitution].

Will the Constitution be amended before the new Chief Justice is appointed?

The procedure for amending the Constitution is lengthy and cannot realistically be completed in less than four months.  The office of Chief Justice will fall vacant at the end of February next year, only two and a half months away.

Section 324 of the Constitutional says that all constitutional obligations [and appointing the Chief Justice is one of them] must be performed without delay.  Hence the Government should not wait until the Constitution is amended before appointing a new Chief Justice.  In view of this, the proposed amendment to section 180 may be considered unnecessary and shelved.

Veritas Comment

Many aspects of the case seem strange.

1. It was known the interviews were scheduled months ago – why was the case taken on the weekend before they were due?
2. A law student hitherto claiming to be impecunious was able to employ senior lawyers in the firm where he was an intern.
3. Why did one of the respondents, who should have been defending the case, assist the applicant by producing an affidavit saying the appointment procedure might be changed in the future?
4. Why did the judge give so much weight to an affidavit suggesting a possible future change in the law, instead of applying the law as it stands?  This approach was certainly not applied in a recent Constitutional Court case where an applicant tried to stop the introduction of bond notes:  the whole Bench ruled that they could not give a ruling on what was alleged to be the government’s intentions but had to rely on the law and the facts as they then existed.
5. The judgment spoke at length about constitutional principles of transparency and accountability but favoured replacing the current system of judicial appointment, which involves public nominations, public interviews and selection by peers, with one allowing the President arbitrarily to appoint the head of the judiciary.   The system laid down by the Constitution gives far more balance between the three arms of the State.

It is hard to avoid the conclusion expressed by many commentators, that the case – and perhaps the judgment itself – was motivated by political considerations rather than by a desire to uphold the law.

Changing the Constitution is Dangerous

Already the Constitution gives the President far more power than most constitutions.  In the words of a distinguished constitutional expert, the government’s proposal would exchange a “progressive clause which promotes openness, transparency and has some checks and balances” for “opaqueness and secrecy” [link]

Having spent seventeen years working on a new Constitution which was approved overwhelmingly by the people of Zimbabwe, the Government, or a faction within it, are now proposing to change that very Constitution.  This sets a very bad precedent.  Will it open the gates to other retrogressive changes?

This case will send a bad signal to investors and the people of Zimbabwe, who look more and more for stability and the rule of law [for which judicial independence is essential].

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.