The proposal to amend the Constitution of Zimbabwe is based on myths which must be debunked. In an effort to rally support among ruling party MPs, authors of the amendment have resorted to peddling false arguments around the genesis and effect of the relevant provisions. This article knocks the bottom out of these false myths.
What do they want to amend?
The principal aim is to amend section 180 of the Constitution, which deals with judicial appointments. Section 180 introduced a new procedure for appointing judges, the core of which is the system of public nomination and interviewing of candidates. These interviews are conducted by the Judicial Services Commission (JSC) before they are sent to the President for final selection.
In the past, there were no such public nominations or interviews. The President simply appointed judges in consultation with the JSC. He could ignore the advice of the JSC. In short, the difference is that where the new process is open, the past was opaque. It is to that past framework that the authors of the amendment want to take us back.
Myth 1: That section 180 is an MDC clause
The principal drivers of the amendment in ZANU PF want people to believe that section 180 is an MDC clause. The MDC would happily accept exclusive credit for such a progressive clause, for it would mean unlike ZANU PF, it privileges openness, meritocracy and transparency ahead of opaque and secretive systems of appointing public officers. The truth however is that section 180 was a joint effort involving the 3 parties that were involved in the constitutional negotiations.
As an adviser to the MDC during those negotiations, I know that our proposed model was a lot stricter than the current section 180. We wanted the Chief Justice, the Judge President and judges of the Constitutional Court to be confirmed by Parliament before taking office. We preferred a system with greater scrutiny and checks and balances. In fact, we wanted the entire bench to be retired so that all candidates would reapply for judicial office. This is what they had done in Kenya upon adoption of their new Constitution. The judges, who had a permanent representative in the constitutional negotiations and ZANU PF strongly resisted these propositions.
Nevertheless, all parties agreed on the need for an open system of appointing judges with public participation and checks and balances. Nobody questioned the need for public interviews. All progressive jurisdictions around us, including South Africa had moved towards a system of public interviews and it made no sense to remain stuck with an opaque system. We all settled on section 180. It is neither an MDC nor a ZANU PF clause but a mutually agreed provision. If the MDC parties had had their way, section 180 would be more robust and certainly Parliament would have a role in choosing a Chief Justice.
Myth 2: That section 180 elbows out the President from the appointment process
To rally support for the amendment, authors of the proposed amendment are peddling the myth that section 180 does not give him power in the judicial appointments process. It creates a false impression that section 180 is bad for the President. They know President Mugabe loves power and that he will not resist the idea of having more power in judicial appointments. They also know that ZANU PF politicians will not oppose the amendment because doing so would be regarded as undermining the President.
The truth however, is that the premise of this argument is false. In fact, the President retains the ultimate power to make judicial appointments. This is how the process works: After the JSC interviews, the President is given a shortlist of suitable candidates. However, he has the power to reject all candidates on the first shortlist. In that case, the JSC must start again and submit another shortlist. It is only at that point that the President must choose a candidate. The purpose of this provision is to provide checks and balances in the process. While the President may exercise discretion to reject the first shortlist, it would become cyclical and endless if he could reject the second list. There must be a limit – at some point he must choose from what he is given.
There is nothing unfair in this process. The President is an integral part of the process. In fact, as I have stated, the MDC parties wanted far more than this. Under their model, parliament would have had a role. It is wrong to say the President has no big role in the process. He has, except that it is now subject to some checks and balances as should be the case in a constitutional democracy.
Myth 3: That the Judicial Services Commission is not suitable for interviewing the Chief Justice
There is a view that the JSC is not the right body to interview candidates for the role of Chief Justice. This view states that the JSC comprises persons who are junior to the candidates. It goes further and states that it is improper for the outgoing Chief Justice to be involved in the selection of his successor. Purveyors of this view also argue that the involvement of the outgoing Chief Justice somehow offends the principle of separation of powers. The irony of this is that their alternative is that the President, head of the executive arm of the state, must be given sole discretion to make the appointment. That proposition is a greater threat to the principle of separation of powers.
Members of the JSC are peers of candidates. In every other profession, professionals’ are reviewed and judged by their peers. There is absolutely nothing wrong with that. Second, the JSC does not appoint the Chief Justice. It simply selects from a list of nominees, based on their performance during interviews, which are public. At the end of the day, their choices are subject to the President’s power to make the final selection. If anything, section 180 provides a useful balance between the JSC and the President. Giving members of the judiciary a role in the appointment of their head is critical to enhancing judicial independence. After all, parliament chooses its own head, the Speaker of Parliament, through a vote. Why shouldn’t judges be allowed to select their peer as a Chief Justice?
Myth 4: That a draft Constitutional Bill and a memorandum to Cabinet override the Constitution
When the Ministry of Justice submitted its papers in a court case challenging section 180, it stated that the process of amending the provision was already underway. This gave the impression that the memorandum to cabinet and the draft Bill which it attached to the court papers had any legal relevance. The fact is that neither document had any legal weight as far as the constitution is concerned. Those documents signalled an intention to change section 180 of the constitution, but did not override it. It is axiomatic that the constitution is the supreme law in the country. Nothing is superior to it. The rule of law requires that provisions of the constitution be upheld religiously. Even if ZANU PF resolve at their conference to amend the constitution, the resolution will not have any legal significance as long as the constitution is not yet amended. The prevailing provisions have to be applied. As it stands, there is only one procedure to appoint the Chief Justice and it is contained in section 180. It must be followed unless it is amended. A judge’s order authorising disobedience of the constitution is unconscionable.
Myth 5: That the ZANU PF amendment will supersede, reverse or stop the current process
The final myth is that the current process will be superseded and invalidated by the amendment once it is passed. This is false. There is already a constitutional process in motion and it must be concluded. Even if the President rejects the first shortlist, the process won’t have stopped at that point. The new set of interviews would be part of the same continuous process, which becomes complete when he chooses the final candidate. ZANU PF’s proposed amendment may therefore affect future appointments, but it cannot affect or stop an on-going process, which is already under way. The existence of this process has given legitimate expectations on the part of candidates, present or future, that they would be appointed in terms of the process. Changing the constitution now, before the end of the process that is already under way may present a constitutional crisis, but it will not stop the current process. The authors of the amendment thought out their plan too late. They should have made their amendment long ago. They have had nearly 4 years to do it, since the constitution was adopted in 2013. That they did not and had to wait just a few days before the section 180 interviews shows there political mischief behind the move.
Could the public interviews be invalid?
There is a view that the interviews held on Monday 12 December could be invalid, presumably on the basis that they proceeded despite the existence of a court order which had suspended the proceedings. Perhaps the candidate who absconded, Justice Chiweshe, might bring a case against the proceedings. That is a matter that would have to be determined by a court. However, the JSC is likely to argue that the judge’s order was suspended once they noted an appeal at the Supreme Court. It could be messy, but after all is said and done, the legal position is that section 180 is the current law and the process of selecting the Chief Justice will have to be done through public interviews until that provision is amended.
Finally, the idea of amending section 180 suggests the authoritarian streak of its authors. It is all about centralisation of power in the office of the President. There is nothing progressive about it. They want to change a progressive clause which promotes openness, transparency and has some checks and balances. Authors of its amendment want to take Zimbabwe back to a dark era of opaque and secretive government. It’s unconscionable and must be resisted by all progressive forces. If it goes through, there will surely be many more such changes in the near future and Zimbabwe will be in a worse state.