In his ruling in a case in which a University of Zimbabwe student, Romeo Taombera Zibani, wants the President to directly appoint a Chief Justice instead of appointment by interview, Justice Hungwe said Vice President Emmerson Mnangagwa, who oversees the Ministry of Justice and Legal Affairs, must be allowed to steer the changes to the Constitution.
In his urgent application, Zibani challenged the interviewing of judges by the JSC saying it was inappropriate in the search for a Chief Justice.
Of the candidates eyeing the Chief Justice’s position, which falls vacant in February next year when Chief Justice Godfrey Chidyausiku retires, are two commissioners of the JSC.
The third is Secretary of the JSC.
The fourth is only a senior member of the bench.
Justice Hungwe concurred with Zibani that the whole process was inappropriate.
“It occurs to me that where a lawful process leads to an absurd result in the sense that colleagues select each other for entitlement to public office, as argued by the applicant, it cannot be sanctioned on the ground that it is provided for in the law. Such an approach is irrational. I therefore dismiss the challenge to locus standi on that basis,” he said.
“The applicant points to the root of his complaint in the founding affidavit this way. The fifth respondent (Justice Luke Malaba) and eighth respondent (Judge President George Chiweshe) are part of the commission, the JSC, which is the first respondent. The sixth respondent (Justice Rita Makarau) is its secretary as well as judge of appeal in the Supreme Court where the seventh respondent (Justice Paddington Garwe) also sits as judge of appeal.
He continued, “The eighth respondent, as Judge President, reports to the Chief Justice (Chidyausiku) who will chair the interviewing panel as prescribed by Section 180. The applicant contends that over time, relationships have formed between and amongst these individuals which may result in either prejudicial bias or favourable bias between and amongst them. He describes their relationship as incestuous. He complains that in the public perception, such situation offends the integrity of the whole process thereby striking at the heart of the values of the Constitution.”
Justice Hungwe said this explained why VP Mnangagwa, in his capacity as the overseer of Justice and Legal Affairs Ministry, should be allowed to correct the anomaly via amendment of the Constitution.
“The third respondent (VP Mnangagwa) has decided to correct the situation through a proposed amendment to Section 180. Clearly, the third respondent ought to be allowed to steer that process in the interest of the integrity of the process. How this correction is to be achieved becomes a policy issue which the third respondent is eminently equipped to address,” he said.
Justice Hungwe said courts ought to take notice of such intentions by the policy-makers.
“In this vein, I consider that when the policy-maker indicates an intention to make provision for an hitherto unforeseen eventuality, the courts would play their role by taking notice of such intention, and allow the people’s elected representatives to initiate such processes as would facilitate that journey on the development road.
“A slavish adherence by the judiciary to provisions which will clearly produce unintended consequences can only serve to arm the enemy of judicial independence to the detriment of our liberal constitutional values and objectives.”
The lawyer representing the JSC, Mr Addington Chinake had posited that the Constitution recognised judicial independence as a key pillar to separation of powers.
He said the commission was mandated to fill vacancies in the courts whenever they occur.
“That far I agree. However, this argument implies that once a process has been started, no one can stop it, not even this court, because it is a lawful process. In the scheme of similar documents, I regard our Constitution as a transformative charter which underscores the need for an independent judiciary.”
He said while the courts jealously guarded judicial independence, the judiciary owed it to the public to be accountable politically, decisionally and behaviourally.
“In this regard therefore I disagree that there should be slavish adherence to the separation of powers doctrine as Mr Chinake seems to suggest in his submission. Just as the autonomy of independent commission is important, their accountability is also crucial given that accountability is a core pre-condition for legitimacy of all State institutions. As with judges, the issue of accountability arises because of their autonomy,” said Justice Hungwe.
He said independent commissions risked being hijacked for obscure reasons.
“As is now widely accepted worldwide, there may be the possibility that the independent commissions may engage in corruption or pursue partisan interests rather than the public interest. This speaks to the need for oversight over independent commissions given the reality that when any State organ is left unchecked it can run amok and perpetrate the very ills it is mandated to curb. There is also need for political accountability in the form of accountability to the elected representatives of the people. In a democracy all parts of Government ought to be accountable to the people.”
Justice Hungwe partly agreed with Mr Chinake that a draft memorandum addressed to Cabinet by VP Mnangagwa highlighting principles of the proposed amendment to the Constitution do not constitute part of the law.
This was after Mr Chinake argued that the JSC could not be stopped from executing its constitutional mandate on the basis of the draft amendment.
Justice Hungwe, however, highlighted that it was improper for the JSC to press ahead with the interviews, which it later held basing on an appeal it had noted.
“If this argument is seriously made then it reflects poorly on the first respondent’s (JSC) perception of its role, which would be unfortunate because it suggests that even in the face of a clear intention of the policy-makers, the first respondent (JSC) is bent on proceeding with a process which the applicant is challenging and which challenge appears to have caught the attention of the policy-maker.
“It does not need a rocket scientist to see the genesis of a possible but hardly unnecessary conflict between the two arms of the State. Once a court is briefed on the intention of the policy-maker, as in the present case, where the court is seized with an application by a private citizen regarding the probable infringement of a prima facie right, it would be remiss of the court to disregard that advice when deciding whether to grant the relief sought or not,” he said.
Justice Hungwe noted that Zibani’s fears had been vindicated by the JSC’s behaviour.
“The applicant’s fears are quite clearly vindicated by the first respondent, who appears quite determined to achieve, for some obscure motive of its own, a fulfillment of its constitutional obligation against opposition,” said Justice Hungwe.
“As an example, Mr Chinake had the temerity to instill the fear of a constitutional crisis should the process be stayed. This crisis probably resides in his client’s imagination only because the Constitution clearly provides that in the absence of the Chief Justice, the Deputy Chief Justice acts in his stead. It also states that in the absence of the Deputy Chief Justice, then the next senior judge acts as Chief Justice and so on. I am not persuaded that any crisis will envelop this country should the process be stayed pending the determination of the matter.”
He also dismissed Mr Chinake’s claim that Zibani had sued the wrong parties.
Zibani cites as respondents the JSC, President Mugabe, VP Mnangagwa, Chief Justice Godfrey Chidyausiku, Deputy Chief Justice Luke Malaba, Justice Rita Makarau, Justice Paddington Garwe and Judge President Justice George Chiweshe in that order.
Said Justice Hungwe, “In his penultimate objections, Mr Chinake contends that the applicant sued the wrong party. The converse of this argument is that the applicant has not cited the correct parties. In Mr Chinake’s estimation, since the first respondent (JSC) does not enact laws of this country, the applicant must lobby for a change in the law in the right quarters and leave the first respondent to execute its mandate as set out in the Constitution…The first respondent needs to enjoy its independence as much as the law presently provided can allow. This argument, if I understood counsel correctly, which I believe I did, boils down to a claim that the order sought will compromise the first respondent’s independence.
“Again I find myself in respectful disagreement with the argument. Whilst the first respondent is constitutionally mandated to administer the affairs of the judiciary in Zimbabwe, it does not do so in a vacuum. The fact that the first respondent is an independent commission is given in the Constitution…
“However, while the first respondent is one of the many independent commissions under the Constitution, it needs the co-operation of the other two arms of the State, in the spirit of comity between different branches of Government. The first respondent is the principal duty-bearer in ensuring that the intention of the law-giver; Parliament and the Executive and ultimately, the people of Zimbabwe, are subjected to good governance,” he said.
He ruled that VP Mnangagwa was naturally bound to have interest in the matter.
“As the Minister responsible for the administration of justice and in his capacity as Leader of the House, any matter which he deems appropriate for further scrutiny in the public interest and in the furtherance of due proper administration of justice and the law in Zimbabwe ought to concern him.
“In this regard, it will be clear that when he expresses an intention to bring for public debate, the other arms of the State ought to take notice and respond on the basis of that reality,” he said.
“In this regard the third respondent (VP Mnangagwa) indicates appropriately through his agent, that he has recommended to the ultimate authority that there may need to amend Section 180 of the Constitution of Zimbabwe depending of course on whatever the public may input during the necessary processes. This is as it should be. I am therefore unable to accept that objection that the applicant cited the wrong parties or that the correct parties were not cited.”
Justice Hungwe also dismissed the JSC’s contention that Zibani’s application was not urgent.
For those reasons, he granted Zibani’s application.
The judgment was released on December 12.Takunda Maodza, source-chronicle