BSR: Justice Chigumba - the new ZEC Chairperson
Justice Priscilla Chigumba has been announced at the new Chairperson of the Zimbabwe Electoral Commission (ZEC), the country’s election management agency. She takes over from Justice Rita Makarau, who resigned in December last year for as yet undisclosed reasons. This is one of the hottest seats in the country, which is even more intense given the imminence of the next general election. No doubt, the new Chairperson will have her work cut out. It is important to have an insight into the character of the new head of ZEC.
Justice Chigumba has been a judge of the High Court for six years. She was appointed by former President Robert Mugabe in 2012, during the Inclusive Government. These appointments were controversial as Mugabe refused to consult his power-sharing partner, Prime Minister Morgan Tsvangirai, contrary to the letter and spirit of the Global Political Agreement (GPA), which was part of the Constitution. Before that, she held the role of senior professional research assistant in the office of the Chief Justice, after serving as a magistrate since 2004 when she joined the judiciary. She did her law degree at King’s College London and her secondary school at Goromonzi and St Ignatius. Her performance show that she was a talented student. Four things stand out in her short career on the bench: first, her order in the demonstrations against the government in 2016, her judgement in the Evan Mawarire case in 2017, accusations of bribery against her and finally, her attempt at promotion to the Supreme Court. No doubt, there is more to the relatively young female judge, but these things help shed some light on the person under the judicial wig. Firstly, unlike previous ZEC Chairpersons, she does not have a known political or non-legal role before her appointment to the bench. Her immediate predecessor, Justice Rita Makarau had previously served as a non-constituency Member of Parliament, having been appointed by former President Mugabe. The previous chair, Justice Simpson Mtambanengwe had been a long-serving judge in Zimbabwe and Namibia but he was also a veteran of the liberation struggle. He was a political compromise between the coalition parties. Justice Chiweshe before that had been a Judge Advocate in the military and was also a war veteran. His role in the farcical 2008 general election was controversial. At less than 50, Chigumba belongs to a new generation of judges and has no known political role in any party apart from the legal field.
The demo ban order
She is mostly remembered for her order in September 2016 in a matter involving government’s ban against demonstrations in central Harare. It was hailed as a brave judgment by activists and human rights defenders, including the opposition parties. However, as explained in a BSR at the time, the celebrations over that order were premature and misguided because the order had actually given government room to manoeuvre. The police had issued Statutory Instrument 101A of 2016 on 1 September 2016, banning all demonstrations in central Harare for a period of two weeks. The ban was challenged at the High Court where Justice Chugumba gave an order on 7 September 2016, declaring that the statutory instrument was invalid since it violated the Constitution. This was the correct judgment because the ban was clearly illegal. No reasonable judge could have come to any other conclusion. However, appearances can be deceiving and this order was a good example of that phenomenon where something that looks good is actually not that good after all. It looked like a brave order which allowed the demonstrations, but in reality, it took away with one hand what it had given with the other hand. This was because having ruled that the ban was illegal, the judge went on to suspend that order for a period of seven days. This was, according to the judge, to allow a “competent authority” (the police) to correct the defects of the statutory instrument which she had declared invalid.
The suspension of the order effectively meant that the illegal statutory instrument was kept alive for a further seven days. Therefore the ban that the police and government wanted effectively remained in place. The judge could have pronounced the death of the patently illegal statutory instrument. Instead, she chose to keep it alive by giving it that 7 day lifeline. As it happened, the police issued yet another statutory instrument, the same as the first one, but this time for an even longer period of four weeks. They argued that they were complying with the judge’s order, which technically was correct, never mind that the new ban was still illegal!
Therefore, while Justice Chigumba was commended for her “brave” order, this was based on a misreading of the terms of the order which in effect actually allowed the government to prevent the citizens’ demonstrations. Her declaration of unconstitutionality was of academic importance because, in reality, the government had achieved the ban which it was seeking. The first ban had started on 2 September and was to run until 16 September. Justice Chigumba’s order on 7 September allowed it to stand for a further seven days, that is until 14 September, meaning government had practically achieved the ban it wanted in the first place. Whatever momentum there was in the demonstrations would have ebbed away by then.
The nature of the order said a lot about the judge and the compromised nature of the judiciary under the Mugabe regime. Judges had a difficult task of delicately balancing what was right and the government’s interests. Typically, if a judge found against the government, they looked for ways to mitigate any losses to the government. Thus they had to qualify their anti-government orders. In this case, there was no doubt that the ban was unconstitutional. It should have been struck down immediately, to allow citizens to exercise their rights. However, having declared it illegal, Justice Chigumba had to carry out the balancing act by giving the government a week to correct its mistakes. All within the law, but clear deference to the government by sacrificing fundamental rights and freedoms.
This raises important questions as to how Justice Chigumba would handle matters at ZEC when faced with clear illegalities by the government. Would she be brave enough to declare challenge the illegalities or would she, as she did in the demo ban case, defer to the government? Her approach, in that case, suggests that she might try to do a balancing act, recognising the illegality but at the same time giving the government a moratorium.
This is precisely the shortcoming that blighted the tenures of her predecessors at ZEC. They over-deferred to government even in the face of illegalities. At one point, Justice Makarau argued that ZEC could not register voters because there was no enabling legislation, which made little sense because the constitution had already conferred powers on ZEC to register voters. In any event, when by-elections were called, she found herself having to reverse her decision and start registration of voters without any amendment to the electoral law. Chigumba will be faced with many instances of illegalities in the next few months. She will have to be brave to declare these illegalities for what they are, instead of acting as a defender of government.
The allegations of bribery will probably haunt her into her new job unless there is a definite public clearance. She was accused of demanding a $20,000 bribe from a litigant in a matter she was adjudicating. She protested vehemently against these allegations. It is not clear whether she was cleared but her appointment would suggest that she was. If she was cleared of the allegations, that clearance did not receive sufficient publicity to clear her name in the court of public opinion. In any event, the allegations seem to have cost her a promotion to the Supreme Court. She was going through the interview process for the job when the allegations were first publicly disclosed.
If there is any semblance of truth in the allegations, then it casts doubt on her credibility for the job as she would appear to be corruptible. However, if she was cleared of the allegations, and it is possible that it may have been a smear campaign, then this needs to be made clear in order to give confidence to all political actors and the electorate. Every person, including a judge, is entitled to due process, which means she must be regarded as innocent until proven guilty and she ought to be given a chance to defend herself. An allegation alone is not enough to disqualify her from holding the ZEC Chair.
Her audacity to apply for the Supreme Court bench after just a few years as a High Court suggest that she is highly ambitious. In the current context it also suggests that the ZEC chair will be a temporary stop-over and she will one day want to return to the bench as a senior judge. This also means, like her predecessor, she is unlikely to want to rock the boat, after all, the President makes senior judicial appointments. It strengthens the case against appointing serving judges to this role. They have too much to lose if they antagonise the incumbent regime.
It is to her credit that she cleared Evan Mawarire, the well-known pastor, activist and leader of #ThisFlag citizens’ campaign, who shot to prominence in 2016. He had been accused of attempting to overthrow the government of Mugabe and inciting others to commit public violence. Justice Chigumba found in November 2017, that there was no evidence that Mawarire had tried to overthrow the government or the use of violence but that he had urged peace at all times during his campaigns. It was the correct judgment but, in truth, the matter should never have proceeded to a full trial in the first place.
Furthermore, the timing of the judgment took the sting out of it. It would have been more remarkable if the judgment been delivered while Mugabe was still in power. After all, it was his government that Mawarire was alleged to have attempted to overthrow. However, it came just over a week after the once seemingly indomitable Mugabe had been forced to step down by his former allies. Although it did not have the same punch, the judgment still came as a huge relief to the pastor and his supporters and received worldwide publicity.
In conclusion, a note has to be made about the flawed character of the selection process, which is not Chigumba’s fault. The selection of ZEC Commissioners is more rigorous than the selection of the Chairperson. For all other commissioners, there must be a public and transparent interviewing process, whereas, for the Chairperson, the President only has to consult the Judicial Services Commission and the Standing Committee of Parliament and even so he is not obliged to follow their advice. This means one of the principal competitors in the electoral process also has the power to choose the referee – a severe weakness in our constitution which needs correction.
In addition, there is no good reason why the role of ZEC Chairperson must be reserved exclusively for lawyers. The current provision is based on the thinking that the job requires someone with legal knowledge, which is flawed. The job requires an impartial person with integrity and administrative skills to run an elections management body. These skills are not exclusive to lawyers and in fact, may be found in persons who have no legal training at all. As for legal skills, that is why these organisations have legal departments. The field must be left open to other professions so that there is a wider pool from which to choose the head of ZEC. We have experimented enough with serving judges and they have not fared well in that role. Best wishes, however, to Justice Chigumba.