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The Big Saturday Read: Chief Justice Malaba - Dawn of a new era or more of the same?


After a long-drawn-out process and needless controversy, Zimbabwe finally got a new Chief Justice this week following the appointment of Justice Luke Malaba, who has served as the Deputy Chief Justice since 2008. He becomes the sixth Chief Justice of Zimbabwe since independence in 1980, taking over from the recently retired Chief Justice Godfrey Chidyausiku.

Most people agree that he is the right person for the job, having out-performed fellow nominees at the public interviews held in December 2016. Given the controversy that accompanied his appointment, it is important to keep a record of what transpired and also to reflect on what to expect from the new Chief Justice Malaba during his time at the helm of the judiciary. It could be the dawn of a new era or a continuation of the same. He has an opportunity to manufacture a lasting jurisprudential legacy. The alternative is to waste it and be remembered as no more than a water-carrier for the regime.

Summary of events

Sometime in October 2016, in line with a new procedure under the 2013 Constitution, the Judicial Services Commission (JSC) announced a call for nominations to fill the post of Chief Justice, which was soon to become vacant following the mandatory retirement of the then Chief Justice, Godfrey Chidyausiku at the age of 70. Four senior judges were nominated. They were, in no particular order: Deputy Chief Justice Luke Malaba, Constitutional Court judge, Justice Paddington Garwe, the Judge President of the High Court, Justice George Chiweshe and the Chairman of the Zimbabwe Electoral Commission and Constitutional Court judge, Justice Rita Makarau. The public interviews were set for 12 December 2016.

However, on 7 December 2016, just 5 days before the public interviews, one Romeo Zibani, a private citizen, brought an application at the High Court, challenging the legality of the process of appointing the Chief Justice. He also wanted the Constitution to be amended in order to change the process of appointing the Chief Justice. Further, he wanted the court to stop the public interviews, pending the constitutional amendment. Curiously, instead of defending the existing constitutional process, the Minister of Justice, Legal and Parliamentary Affairs, shared Zibani’s views.

The matter was heard before Justice Charles Hungwe on 11 December 2016, just a day before the public interviews. Justice Hungwe ruled in favour of Zibani, ordering the JSC to stop the interviews. However, in a twist of events, the JSC noted an appeal at the Supreme Court against Justice Hungwe’s order. The effect of the appeal was to suspend Justice Hungwe’s order, a circumstance which opened a window for the JSC to proceed with the scheduled interviews. However, one of the nominees who was due to be interviewed, Judge President George Chiweshe, did not attend the interviews. The reasons for his non-attendance have never been made public. Later the JSC submitted a list of names to the President together with its recommendations following the interviews. Deputy Chief Justice Malaba was the outstanding candidate with 92%, Justice Makarau was second with 90% and Justice Garwe, a distant third with 52%.

Therefore, as process was going on, there were two parallel processes taking place at the same time. The first parallel process was the litigation launched by Zibani. The second was an amendment to the Constitution intended to change the procedure for appointing the Chief Justice. The Minister of Justice was a key player in both processes: in the litigation the Minister was cited as a defendant but as events unfolded it became clear that his interests were aligned to Zibani’s. The Minister was also the lead sponsor of the constitutional amendment. At this point it is worth stating for the record that the person exercising the functions of the Minister of Justice is Vice President Emmerson Mnangagwa. The involvement of the Minister of Justice in both parallel processes inevitably demonstrated the politics taking place around the appointment of the Chief Justice. I will deal first with the legal dispute before turning to the proposed constitutional amendment.

The litigation

After the JSC noted an appeal against Justice Hungwe’s order to stop the interviews, the appeal at the Supreme Court was heard in February 2017. Curiously, a majority of the judges at the Supreme Court recused themselves from the case. The reasons for recusal were not publicly cited. This left the Supreme Court with an inadequate number of judges to form a quorum – the minimum number of judges to hear such a matter. This prompted Chief Justice Chidyausiku to appoint retired Justice Vernanda Ziyambi as an acting judge of the Supreme Court. The Constitution permits the Chief Justice to appoint an acting Judge for a limited period from the pool of serving High Court judges or former judges. After hearing the appeal, the Supreme Court ruled in favour of the JSC and confirmed the legality of the public interviews. The matter would have ended there, but Zibani and his associates had other ideas.

Zibani could not appeal against the Supreme Court decision. He decided instead to submit an application to the Constitutional Court, challenging the validity of the Supreme Court judgment on the ground that the Supreme Court was improperly constituted. They argued that the appointment of Justice Ziyambi was improper because she had already reached retirement age and was therefore no longer eligible to be a judge. The outgoing Chief Justice Godfrey Chidyausiku was cited as a respondent. All this made his departure from office very messy and undignified. In his valedictory speech, he lamented these circumstances as the lowest point of his judicial career. To add to the intrigue, the Minister of Justice responded to Zibani’s application in a manner that suggested he was supportive of the application, suggesting in addition that retired Justice Ziyambi had not taken an oath when she was brought back as an acting judge.

However, the appointment of Justice Malaba as the new Chief Justice came before the resolution of Zibani’s new application and its relevance is now no more than academic. If Zibani’s law-suits were designed to frustrate the constitutional process, then the strategy failed miserably. In the bigger context, the law-suits have had nuisance value and have failed to stop the legal process.

Constitutional amendment

The second parallel process that was going on during the appointment process was the amendment to the Constitution spearheaded by the Ministry of Justice. The proposed Constitutional Amendment No. 1 is designed to change the procedure for the appointment of the Chief Justice. Under the current provisions, a Chief Justice is appointed through a process in which candidates are nominated by members of the public before they are interviewed by the JSC and thereafter, a shortlist is presented to the President who makes the final appointment. The amendment seeks to remove the public nominations and public interviews by the JSC. Instead, the President will have a wide discretion to make the appointment. He has no obligation to listen to or follow the advice of the JSC. In essence, the difference between the two is that the current process contains checks and balances on the President’s power to appoint the Chief Justice, whereas the proposed process has none of those checks and balances.

It is instructive to note that the amendment was introduced midway through the appointment process. The JSC had already made calls for nominations and interviewed the nominated candidates when the proposed amendment was introduced in Parliament. It did not make sense to give precedence to a proposed amendment ahead of the existing constitutional provisions. It is clear that the rush to introduce a constitutional amendment was motivated by an intention to interfere with and forestall the conclusion of the on-going appointment process. It was also hardly a coincidence that the constitutional amendment was introduced at the same time that Zibani was suing the JSC with the intention of stopping the public interviews, an integral part of the on-going appointment process. It is useful to note that while the Minister of Justice was cited as opposition in that matter, in reality the Minister was in sync with Zibani on all accounts. Zibani was asking for a constitutional amendment to change the appointment process and the Minister of Justice was introducing a constitutional amendment to give effect to this proposed change.

Overall, the two strategies designed to frustrate the constitutional process of appointing the Chief Justice: the first, through litigation, carried out by Zibani and the second, through the constitutional amendment, carried out by the Minister of Justice. These parallel processes were complementary and designed to delay the appointment of the new Chief Justice using the existing procedures. The litigation was meant to be used as justification for not appointing the new Chief Justice on the ground that there was an on-going legal dispute which needed to be resolved first. The litigation would also drag on for long enough to permit the passing the constitutional amendment into law. Unlike ordinary laws, a constitutional amendment cannot be fast-tracked through Parliament. For this reason, it was impossible for the sponsors of the amendment to rush it through the legislative process. They needed prolonged litigation to keep the appointment in abeyance while fulfilling the time limits required for a constitutional amendment. Unfortunately for sponsors of these strategies, they eventually came to nought after President Mugabe appointed Justice Malaba before the litigation was resolved and well before the constitutional amendment had gone through.

Upholding constitutionalism

The fact that the authorities moved to appoint Justice Malaba this week deserves commendation as it fulfils the principle of constitutionalism. This is not so much a celebration of the appointed candidate but of upholding constitutional process. It was utterly unreasonable to stall an existing constitutional process on account of a proposed amendment or litigation. If this were allowed, it would set a dangerous precedent where the state could avoid a constitutional requirement citing litigation or a proposed amendment. Section 2 of the Constitution makes it clear that the Constitution is the supreme law of the land and every other law or policy is subject to its terms. To stall a constitutional process in favour of a proposed amendment would elevate a proposed amendment above the level of the Constitution. It was clear that the litigation and proposed amendment were designed to frustrate the on-going constitutional process. That the constitutional process was allowed to reach its logical conclusion must therefore be hailed as a great gesture in support of constitutionalism. When the Constitution provides for certain procedures, those procedures must be followed regardless of whether or not they satisfy the interests of a group or faction. To stall on the process would have given priority to factional interests ahead of the Constitution.

Fairness and transparency

The appointment of Justice Malaba is also a credit to the Constitution, which introduced a new procedure for appointing judges and contains checks and balances which were not present in the old procedure. This was the first time that the procedure was being used to appoint a Chief Justice, although it had already been used for the appointment of judges of the High Court and Supreme Court since 2013. According to this new procedure, various actors have different roles to play in choosing the country’s top judicial officer. Members of the public have a right to nominate candidates for the post. The nominated candidates are interviewed publicly by the JSC. Thereafter, the names of shortlisted candidates are sent to the President for the final selection. In this way, it is an inclusive process which ensures that citizens, from whom judicial authority is derived, participate in the appointment process. The very idea that the interviews are conducted in full public view is important for transparency and accountability. It is a very different system from the one that was used in the past where the Minister of Justice had a more influential role. It was shrouded in secrecy and members of the public had no role whatsoever in the appointment of judges.

Under the new system, the days of appointing judges in secret are long gone. There is literally no place to hide, both for the appointing authorities and the candidates who must be tested publicly. Weak candidates will be exposed and the strong candidates have an opportunity to demonstrate their strengths. The new procedure is based more on meritocracy as opposed to the old system that relied more on the old boys’ network where the Minister selected judges from a pool of lawyers that were known or close to him. The nation would only be told that someone had been appointed a judge. Under the new system, everyone gets a fair chance to demonstrate their capabilities. Those otherwise shunned by the system get their chance while those favoured by the system have to justify themselves to the public before they can be appointed. It is a fair system for everyone.

Factional wars

The appointment of Chief Justice Malaba before the conclusion of Zibani’s litigation and the constitutional amendment process represents a blow for the political faction of ZANU PF that is closely associated with Vice President Mnangagwa, who as the Minister of Justice played an important role in the constitutional amendment and the litigation that sought to delay the fulfilment of the existing constitutional process. The Vice President and his Ministry did not demonstrate any interest in defending the existing constitutional process. Their interests were more aligned with the interests of the litigant who was suing them, Zibani.

The media speculated that the Mnangagwa supporting faction was supporting the candidature of Justice Chiweshe. A former soldier, Justice Chiweshe is more widely known for his role in the 2008 presidential elections, when as Chairman of ZEC, results were withheld for 6 weeks. That Justice Chiweshe was the favoured candidate seems to be confirmed by the revelations by former Chief Justice Chidyausiku that he was sent on early retirement last year only to discover that this was false. At that time, Justice Chiweshe was appointed as the Acting Chief Justice, in contravention of the Constitution which clearly states that the Deputy Chief Justice takes that role in the absence of the Chief Justice.

Meanwhile, the other ZANU PF faction was said to favour Justice Makarau, although this has been denied. If the factions had had their way, perhaps Justice Malaba would have lost out. If the Mnangagwa faction was working to clear the way for Justice Chiweshe, then President Mugabe’s move to appoint Chief Justice Malaba is a huge upset for that faction. This could be interpreted as Mugabe reminding the factions that he is in charge. Ever the Machiavellian, Mugabe let Mnangagwa and his team believe that he was going along with them, even approving the proposed constitutional amendment in Cabinet, while all along he knew very well that he would pre-empt it by making an appointment under the existing process. In this regard, the needless controversy generated by the sponsored litigation and the unnecessary constitutional amendment has been a costly affair for the Mnangagwa faction whose intentions have been thwarted.

However, this episode also demonstrates some of the understated strengths of the new Constitution. If the machinations had succeeded, it is more likely that Justice Malaba would not have been appointed, even though on merit he was clearly the best candidate of the lot. Members of the public who watched the interviews were impressed by his performance and it would have been utterly embarrassing if the appointing authorities had overlooked him. That is the main strength of the process: it is an equal opportunity process, which gives everyone a fair opportunity to demonstrate their strengths and weaknesses and leaves the appointing authority with very little choice but to appoint the most capable and most deserving. This, indeed was the motivation for the framers of the Constitution, that there be a fair, transparency and equal opportunities process.

Lost the battle but not the war

Although adherence to the existing constitutional process has resulted in the appointment of the best candidate for the job on this occasion, it is important to remember that Constitutional Amendment No. 1 is still being pursued. The implication is that if that amendment is passed by Parliament, the appointment of Chief Justice Malaba will be the last time that the head of the judiciary will be appointment using this fair, open and transparent process. The proposed amendment seeks to remove the participation of the public and the role of the JSC as the interviewing authority in the process of appointing the Chief Justice. There will be no more public interviews of prospective candidates. Instead, the country will revert to the old process where the President appointed the Chief Justice without the relevant checks and balances. In fact, the Minister of Justice will have the dominant power since he is the one who scouts for candidates and makes a recommendation to the President. In other words, if the amendment passes, Zimbabwe will be back to the old, opaque and secretive process, without checks and balances. Sponsors of the amendment know that the new Chief Justice is 66 years old and his tenure at the helm of the judiciary will be less than 5 years. They will soon have a new opportunity to appoint their favoured candidate using the opaque and undemocratic procedure. It is for this reason that critics and opponents of the amendment must not relax or drop their guard. Sponsors of the amendment may have lost the battle this time, but they have not lost the war. They will definitely be pursuing the war through the constitutional amendment.

Who will be the Deputy Chief Justice?

The Deputy Chief Justice is appointed in accordance with the same procedure for the appointment of the Chief Justice. It is not clear whether when the JSC advertised for the position of Chief Justice it also advertised for the position if the Deputy Chief Justice. If it did, then the President can presumably make an appointment from the same list that was submitted for the Chief Justice. This would mean either Justice Makarau or Justice Garwe would be the candidates for that post. However, if the JSC did not explicitly advertise for that post, it would have to make another public call for nominations.

Is the tenure too short?

The new Chief Justice's age has attracted some attention. Appointed at 66, he will only have 4 years at the helm of the judiciary, just a year longer than the late Chief Justice Fieldsend’s tenure. The shortest tenure was Chief Justice Georges' who served for less than one year between 1983 and 1984. By comparison, the last two Chief Justices served a total of 27 years between them – Gubbay had 10 years and Chidyausiku served for 17 years. Some critics argue that 4 years is not enough for the new Chief Justice to make an impact and that short stints like that will only result in instability and lack of solid direction for the judiciary.

However, in my view, as with any public office, there is need for regular change in personnel at the top. While some countries appoint judges for life, others insist a retirement age. In the US, Supreme Court judges are appointed for life and there are questions there over the suitability of judges serving at an advanced age. In the UK, the age of retirement is 70 years, although there have been calls from the judiciary to increase the retirement age in order to attract and retain more talent and experience on the bench. In Zimbabwe, the retirement age is set at 70 but judges of the Constitutional Court have a term limit of 15 years. After the 15 year term if a judge is under 70, he or she may continue to serve but in the Supreme Court. In South Africa Constitutional Court judges also serve for one 15 year term. The idea of term limits for Constitutional Court judges is partly designed to promote the development of jurisprudence as fresh judges occupy vacant spaces.

The fact that Chief Justice Malaba will have a short stint is not a barrier to effectiveness. If anything, it is desirable. Chief Justice Dumbutshena served in that role for 6 years. His tenure demonstrates that one doesn’t need many years in order to make a remarkable impact as head of the judiciary. He gained a stellar reputation and judgments by both the Dumbutshena and Gubbay courts are still widely quoted as legal authorities in various jurisdictions. It is a good thing that Chief Justice Malaba won’t be in office for too long. It is good to know that there will be change and someone else will be coming in to take his place after 4 years. Change is good.

What to expect from the Malaba court?

Although Chief Justice Malaba will only have 4 years in office, he could still leave a remarkable legacy as head of the judicial arm of the State. He has nothing to lose. In fact, with only 4 years, he has a great incentive to do more and better as he won’t have the opportunity to correct any mistakes. In any event, this is the twilight zone of a long judicial career that began at the very bottom, when he was a junior magistrate in the early 1980s. He has a very short window in which to make his mark. Zimbabwe has a relatively new Constitution which still needs bold implementation. He could be the Chief Justice who breathes more life into a new Constitution which the executive arm of government and legislature have been reluctant and slow to implement. He could lay the foundation for a progressive human rights jurisprudence. The Constitution needed a new Chief Justice with new and fresh ideas and this is his opportunity to chart a new course and make a lasting impact. His record so far has been mixed. He has issued some progressive judgments, but some of the judgments have exposed him to criticism.

One of his well thought out judgments came when he was in the minority. In 2013 the newly established Constitutional Court was seized with a case in which a citizen, Jealousy Mawarire sued President Mugabe, compelling him to set the date for the general election. He argued that the failure by the President to set the election date at a time when the term of Parliament was coming to an end was likely to violate his fundamental rights. The majority led by Chief Justice Chidyausiku ruled in favour of Mawarire’s application an outcome that resulted in the setting of election dates on 31 July 2013. Only two judges, Deputy Chief Justice Malaba and Justice Patel dissented and their judgments were actually the soundest and most reasonable. Of the three written judgments, DCJ Malaba’s was the most well-reasoned and well-written.

It was a special case because of its political sensitivities and the fact that both Patel and Malaba were so bold was a remarkable show of strength of character and fairness. Although the case had been brought by a private citizen, it had the signs of sponsored litigation in that it advanced the interests of both ZANU PF and President Mugabe, even though the latter was the one who was being sued. ZANU PF wanted an early election, which the MDC and other opposition parties were resisting pointing out that there should be electoral reforms first. It was not a coincidence that the Mawarire case favoured ZANU PF’s interests. The judges would have known this and for Malaba and Patel to rule against the application as they did was courageous. It was this case which could have proven to be Malaba’s Achilles Heel in his bid to become the Chief Justice. It probably explains why it took so long before he was eventually appointed.

Another matter which demonstrates his strength of character and independence is the case of Marimo and Another v Minister of Justice, Legal and Parliamentary Affairs and Others [2006] ZWSC 60, a case that involved elections. The important issue in that case was the constitutionality of the Chief Justice’s power to appoint judges of the Electoral Court. Section 162 of the Electoral Act conferred power to the Chief Justice to appoint judges of the Electoral Court. Following that provision after the 2005 elections, Chief Justice Chidyausiku had handpicked judges to sit in the Electoral Court. This was challenged by the losing MDC candidates on the grounds that the Electoral Court was a special court and the judges had to be appointed in accordance with the normal provisions for appointing judges. They argued that section 162 of the Electoral Court was unconstitutional. Realising that he had erred, Chief Justice Chidyausiku had sought to revoke his initial appointments but he immediately re-appointed them.

Justice Malaba ruled that this conduct by the Chief Justice was improper and unconstitutional. Malaba ruled that section 162 of the Electoral Act was inconsistent with the Constitution and therefore invalid. He held that Chief Justice Chidyausiku’s act of appointing judges was invalid. The improper constitution of the Electoral Court meant that the rights of the losing MDC candidates to protection of the law had been violated. “It must follow, that as the judges were not validly appointed, they had no authority to exercise the judicial power of the Electoral Court at the time they purported to hear and determine the election petitions. In other words, the court in which they sat was not properly constituted and was not a court “established by law.” There was a violation of the right guaranteed to the applicants under s 18(9) of the Constitution.” It was a case in which Justice Malaba had to rule on the legality of his boss’ conduct and he did not hide.

However, the new Chief Justice has also had some low moments. One notable one was his denial of the diaspora vote in 2005. In the case of Madzingo and Others v Minister of Justice Legal and Parliamentary Affairs and Others [2005] ZWSC 100, the applicants who were based in the diaspora brought action demanding recognition of their right to vote. The Supreme Court had to decide whether or not Zimbabweans in the diaspora had the right to vote from their foreign stations. In a judgment for the majority, Justice Malaba held that the law did not permit the diaspora vote. Justice Malaba reasoned that while Parliament had made an exception for postal votes for selected persons who were not in the country, it had not extended it to the rest of the diaspora citizens. “Parliament did not find it necessary in the exercise of its powers to treat the applicants as a special class of persons for the purposes of the exercise of the right to vote,” he wrote.

In a disappointing decision, Justice Malaba refused to recognise the right to vote as a fundamental right. The applicants had argued that denial of their right to vote as citizens was a violation of the freedom of expression. However, Justice Malaba reasoned that freedom of expression did not include the right to vote. He held that the applicants’ claim that the right to vote was part of freedom of expression was an attempt “to elevate the right to vote to a constitutionally guaranteed and entrenched right” In his view, the right to vote was not a fundamental human right provided for in the Constitution. This was reasoning was both surprising and disappointing since universal adult suffrage was one of the chief gains of independence and was recognised in the Constitution. It was a case in which Justice Malaba had an opportunity to give broad meaning to the freedom of expression in order to protect a universally recognised. He chose instead to take a narrow reading and by so doing dismissed the right to vote as a non-fundamental right. The right to vote is now explicitly recognised under section 67 of the new Constitution, with extensive provisions elsewhere reinforcing the right to register and the right to vote in elections. It would be interesting to see how the new Chief Justice would handle a similar matter if it were brought as a test case under the new Constitution.

Justice Malaba also wrote the judgment in the Wekare and Another v ZBC case in 2016 where citizens were challenging ZBC’s powers to levy the licence fee. The judgment did not please the public but in all fairness, one could not fault the reasoning. It is the law that needs to be changed.

Nevertheless, it is Justice Malaba’s record on the land question that would have been a prime issue of consideration in deciding his appointment. In this regard, the ZANU PF government would have been satisfied that he poses no threat to its land revolution. One case in particular, would have been pertinent. It was Mike Campbell (Pvt) Ltd and Others v Government of Zimbabwe case which involved the question of recognition of a decision of the SADC Tribunal. After winning their cases at the SADC Tribunal, some white former commercial farmers had sought to enforce the orders in Zimbabwe. The SADC Tribunal had ruled that the land reform process was unlawful and a violation of the rule of law. By so doing the SADC Tribunal had effectively overturned the decisions of the Supreme Court of Zimbabwe, the highest court in the land. It was to this same court that the farmers now returned to register the SADC Tribunal’s decision.

Writing for the majority, Justice Malaba dismissed the farmers’ application, holding that the SADC Tribunal had no jurisdiction over the matter and that the Supreme Court was not obliged to comply with or enforce the orders of the Tribunal. It was a vehement defence of the Supreme Court but also in the political context, of national sovereignty. In this regard, the judgment was not just a defence of the Supreme Court and sovereignty against encroachment by a transnational tribunal but it was also a defence of the land revolution. Justice Malaba’s judgment was therefore well in sync with the government’s message. From that angle, Justice Malaba’s is a man that ZANU PF and government can be rely upon to defend the land revolution.

In January 2016, Justice Malaba issued an important and progressive judgment banning child marriage in Zimbabwe. In that case, two former child brides were challenging the legality of provisions of the marriage laws which they argued permitted child marriage contrary to the protections guaranteed under the new Constitution. That the legislative provisions were unconstitutional was never in doubt, even though the state tried to put up a defence. However, Justice Malaba’s judgment was sound, well-researched and well-written. He had clearly applied his mind to the matter and he used a purposive interpretation technique, enhancing fundamental rights and freedoms. It was useful to note how he made use of international and foreign law to give substance to the new constitutional provisions.

Overall, his jurisprudence so far is a mixed bag. He has made some progressive judgments but he has also made some interpretations that are open to criticism. Now that he is Chief Justice, he has the opportunity to chart his own course and show the kind of judge that he is. In this regard, while his performance at the interviews gave good cause for optimism, it is important to remain cautious. Mugabe and ZANU PF do not usually make the mistake of appointing persons to senior positions without a good appreciation of what they will get. The system is very thorough in its background checks and it is fair to say they probably know a lot more about the new Chief Justice which the rest of us don’t know. These are the things that could be used to keep him in check.

There is also another reason to be cautious. Four years ago, the MDC agreed to the appointment of Justice Makarau as the new Chairperson of the Zimbabwe Electoral Commission (ZEC) believing she was the lesser of available evils. Now however, the opposition is dissatisfied with her role at ZEC. For the same reason, while the appointment of Justice Malaba has given reason for some optimism, this must be heavily qualified with caution because he could turn out to be more of the same, if not worse. The hope is that his short tenure will leave up to its promise and that he will fiercely defend the Constitution and fundamental rights while carrying out important judicial reforms that will curb the scourge of corruption and inefficiency that is affecting the justice delivery system.

Conclusion

The new Chief Justice has many challenges ahead of him. He will not only provide leadership in decision-making but he will also be the chief administrative authority of the judiciary. He must rejuvenate and re-build the image of a judiciary that has long been accused of lacking independence from the executive. To make a mark, he will have to distinguish himself from his immediate predecessor who was seen as too close to the executive and to ZANU PF. He has an important role to play leading the arm of government that must provide checks and balances upon the executive and the legislature. Chidyausiku was the Chief Justice appointed to defend the land revolution and he performed that role unapologetically. It did not win him many friends outside ZANU PF but he did what he believed was necessary. The new Chief Justice will have a different mandate. He must restore confidence in the judiciary. He must reassure the markets and investors that Zimbabwe is a safe destination for investments and that the courts can be trusted to defend fundamental rights, including the right to property.

He also faces a challenging task of ensuring there is harmony in the judiciary. He will be leading a divided team. The High Court judges expressed unhappiness with his comments late last year after he publicly criticised their performance and abilities. The Supreme Court judges who recused themselves from the litigation over the appointment process may have been compromised. Some members of the government wanted a different candidate. He has an unhappy Judge President who absconded from the interviews for the Chief Justice position. Two of his fellow judges lost out to him in the contest for the top post. Added to this judges and magistrates are unhappy with their conditions of service. He has to deal with a legal profession that is in dire need of bold reform. All this is an enormous load that he must carry, in addition to his important role at the Constitutional Court. He will have to exercise Solomonic wisdom, diplomacy and tactical awareness as he navigates through the next four final years of his long judicial career. He could make a great impact in that short tenure, but if he does not handle it well, it could end in tears.

Of the four candidates, I boldly backed his candidature, and I wish him well. I want him to succeed and I hope he will. I will be watching closely and I will praise him when he does well, but I will also be critical if he does not meet the high standards that I expect of him.

Wamagaisa

wamagaisa@gmail.com

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