Barely four years after it was adopted by an overwhelming majority (94.5%) at the 2013 referendum, the government is already proposing amendments to the Constitution.
Papers filed by Virginia Mabiza, the permanent secretary for the justice ministry in a case before the High Court reveal that the government is planning to amend provisions that deal with the appointment of senior members of the judiciary, including the Chief Justice. This comes at a time when the Judicial Services Commission (JSC) is conducting the process to select the new Chief Justice, to take over from the current Chief Justice, Godfrey Chidyausiku, who retires next year when he reaches the mandatory retirement age of 70. The proposition is misguided. It poses a threat to the institutional arrangements designed to promote competence and independence in the judiciary.
The current procedure for appointing the Chief Justice is provided for in section 180 of the Constitution. It involves the nomination of candidates by members of the public. The President is also entitled to nominate candidates. Nominated candidates are then interviewed openly by the JSC, before a public audience. Thereafter, the JSC submits three names of shortlisted candidates to the President, who makes the final choice. If the President is not satisfied with the first three candidates, he can ask the JSC to submit a new list of candidates. At that point, the President has no choice but to select one of the candidates.
As is apparent from the description, the current procedure is designed to be more inclusive and transparent in the appointment of the Chief Justice. The same procedure is used in the appointment of other judges. It has already been used, with some success, in the appointment of judges of the High Court and the Supreme Court. The public interviewing process has helped in weeding out unsuitable candidates who lack the competence for judicial office. It has also added public scrutiny to the judicial appointments process.
The new post-2013 procedure is in sharp contrast to the old procedure, which was mired in secrecy and was haven for Old Boy network politics. The Justice Minister was effectively in control of the process. The Justice Minister has a quiet word with his friends and associates in the legal profession, asking whether they were interested in taking judicial office and then recommending them to the President. The public simply read in the press that so and so had been appointed as a judge. It was very elitist and lacked openness. Unsurprisingly, most judges were male or linked to the ruling establishment.
The new procedure is designed to change this culture, and to ensure the public has a role in the appointment process, both as nominators and as a public audience in the interviewing process. Under this procedure, both the selectors and the candidates are fully aware that they are being watched. There is nowhere to hide. While the President ultimately, makes the final choice, members of the judiciary, through the JSC, now have a key role to play. They are not just there to be consulted (and possibly ignored), but they actually play a positive role in the selection process. The President can only make a choice from their shortlist.
This is the procedure that the Minister of Justice is now proposing to change. Instead, he wants the President must have all the powers to appoint the Chief Justice. He will only be required to consult the JSC. In effect, this would be a return to the old constitutional order a step backwards. If permitted, it would confer a disproportionate amount of power on the President. It is wrong, as a matter of principle, to chop and change the Constitution so soon after its adoption. The argument that it is hard to implement is flawed. The JSC can still forma proper quorum to interview the candidates. The fact that some of the members of the JSC are junior to the candidates has no impact on their professionalism. These same people would still be required to make decisions on their superiors if they were involved in legal disputes. Their impartiality would not be an issue simply because they are junior. They are professionals and they know their job.
To support the call for amending the Constitution, a proxy legal challenge was launched last week in the High Court, in the name of a law student, Romeo Zibani, apparently seeking to compel the government to amend s.180 of the Constitution. Curiously, the Minister of Justice did not oppose the application. Instead, he was supportive, stating to the court through the permanent secretary that he was already amending the Constitution as requested by the applicant. Much about it suggests is was sponsored litigation. Nevertheless, it was a preposterous application in that it asked a court to order the amendment of the Constitution. The court has no mandate to make such an order. Its job is to interpret the law as it exists, not to make law or to compel the making of a law which does not exist. It is an elementary principle of constitutional law that the constitution is the supreme law of the land. Nothing else trumps it. A memorandum from the Minister of Justice to Cabinet or a draft Constitutional Bill have no effect whatsoever on the Constitution. They do not override the Constitution. At best, they represent the intentions of the Minister, but they are not law. Under those circumstances, no judge applying his mind properly and in the spirit of the law would give audience to such an application, let alone uphold it.
But in Zimbabwe, sponsored litigation often defies reason and succeeds. The Jealousy Mawarire case which prompted the 2013 elections is one key precedent which reminds us that such litigation which is designed to meet political ends always finds succeeds before friendly judges. It is not surprising that Justice Hungwe has just granted the Romeo Zibani’s application, effectively stopping the section 180 interviews which were due tomorrow, Monday 12th December 2016. There is no logical explanation for such a conclusion except that there is political gamesmanship at play. How else can one explain a conclusion which prioritises a memorandum and a draft Bill ahead of the existing Constitution? Section 2 of the constitution is clear that it is the supreme law of the land. Why a judge should consider that anything other than the present section 180 should govern the judicial appointments process defies not only the law but logic and common sense.
If anything, the matter should have been dismissed on the basis that it lacks urgency. If it was urgent, it was because the applicant brought it upon himself. There is also no reason why the application was left until a few days before the pubic interviews. It has long been known that Chief Justice Chidyausiku would be retiring in February 2017. In any event, the public interviewing process is already in motion, having begun in October when the JSC made a public call for the nomination of candidates for the post. If Zibani or the Minister of Justice felt that the process of appointing the Chief Justice was skewed and that the Constitution required amendment, they would have done so long back. That they waited until a few days before the public interviews suggests a deliberate plot to scupper the interviews.
In any event, as a matter of principle, there is no merit in the arguments for changing the current procedure. There is no good reason why it must be changed. The argument that the Chief Justice knows the candidates and has worked with them and should not therefore be involved in the process is absurd in light of the proposed alternative that the President must have the sole discretion to make the appointment. Surely, it is better for the Chief Justice to have a central role in the appointment a successor than to have the head of the Executive having full discretion to determine who heads the judiciary? The latter does greater harm to the principle of separation of powers, a cardinal principle of constitutional law. It is regrettable that a good rule which is designed to promote transparency is now being sacrificed on the altar of political expediency.
Finally, the view that the amendment seeks to empower the President in the appointments process overlooks the fact that the President already has this power. As already described, the President makes an appointment from candidates shortlisted by the JSC. There is nothing new that the proposed amendment does which the current provisions do not give to the President. It is a useless, time-buying amendment which only seeks to massage the ego of the President. The plan seems to be to delay the process long enough until after Chidyausiku’s term expires in February 2017. It seems Chidyausiku is regarded as an impediment to the appointment of a candidate favoured by a faction of ZANU PF. Succession politics should not be allowed to affect the Constitution in order to suit parochial interests. It would be a disaster for constitutionalism.