Zanu PF factions brawl over new chief justice

HARARE - Zanu PF's seemingly unstoppable tribal, factional and succession and wars are having a debilitating effect on government operations, with the deadly fights now also getting in the way of the appointment of a new chief justice for the country to replace the retiring long-serving incumbent, Godfrey Chidyausiku.

This comes as the Judicial Service Commission's (JSC's) public interviews to choose Chidyausiku’s successor from a field of four shortlisted candidates, which were scheduled to take place tomorrow, hang in the balance following a court challenge by a law student who wants them stopped.

And in a surprising decision on Friday, the Ministry of Justice acquiesced to a court challenge by the University of Zimbabwe (UZ) student, Romeo Taombera Zibao, who — apart from wanting the court to stop the interviews — is also seeking an order giving President Robert Mugabe the power to appoint the country's new all-powerful leader of the bench.

"It's aluta continua (the war continues) my friend over this vitally important position, with the factions going at each other hammer and tongs as usual, as the Masvingo conference approaches," a senior Zanu PF official who claims to be "non-aligned" in the party's wars told the Daily News on Sunday yesterday.

This was after Vice President Emmerson Mnangagwa, who also doubles up as Justice minister, sent a memorandum to Cabinet last week proposing a number of changes to Section 180. At the same time, the Justice ministry also came up with a draft Bill which will amend the same Section 180 to give Mugabe wide discretionary powers to appoint a chief justice of his choice.

It is now common cause that Mnangagwa's supporters, who go by the moniker Team Lacoste, are locked in a bitter succession war with an opposite Zanu PF faction made up of the party's Young Turks, who are known as the Generation 40 (G40) group, and who are rabidly opposed to the Midlands godfather's mooted presidential ambitions.

One of the alleged G40 kingpins, Higher Education minister Jonathan Moyo, moved swiftly yesterday to critise Mnangagwa, a qualified lawyer, for allegedly not respecting the constitution by proposing to amend the national compact.

“Worrying. The rule of law is based on supremacy of the Constitution & not promissory notes. Justice Ministry must respect the Constitution! ... Constitution is clearly under threat from successionists who are full of foul & have no regard for human rights!” he thundered in a thinly-disguised dig at the VP on microblogging site Twitter.

"Make no mistakes about it, the appointment of a new chief justice has become a new battleground for the G40 and Team Lacoste to fight each other, to the extent that the two factions are said to be digging up information that will discredit some deserving candidates, as long those people do not fit in with their plans.

“From what I have heard, the G40 is in favour of the JSC interviews because it knows its preferred candidate will fare well in such processes. It fears that once the appointment is deferred to Mugabe, the president may be forced to take on board Mnangagwa’s and the military's recommendations.

“On the other hand, Team Lacoste is said to be happy with Gushungo (Mugabe) being given powers to appoint the new chief justice because they are confident that they have influence through Mnangagwa and security chiefs,” the Zanu PF bigwig who spoke to the Daily News on Sunday yesterday said.

However, both legal experts and opposition parties have also slammed the move to amend the constitution, and take away the JSC's powers in this regard which are affirmed in the national compact.

Lawyer and leader of the opposition People’s Democratic Party (PDP), Tendai Biti, was among those who launched a scathing attack on Mnangagwa, whom he alleged wanted to circumvent the interviewing process to protect “his favoured candidate”.

“That is why some of us are clear, this man (Mnangagwa) is dangerous and should be a million miles away from the seat of power. This is unacceptable and seeks to shake the foundations of the Constitution,” Biti said.

United Kingdom (UK) based legal expert and former adviser to opposition leader Morgan Tsvangirai, Alex Magaisa, also said it was “shocking that the Constitution is becoming a casualty of succession wars ... Changing the Constitution to suit a parochial agenda”.

MDC spokesperson, Obert Gutu, who is also a lawyer, also accused Team Lacoste of trying to amend the Constitution to suit its agenda.

“It just shows that they want to bastardise the rule of law. With the current Constitution, the appointment of the chief justice, the deputy chief justice and the judge president is actually democratic because they are interviewed by the JSC,” Gutu said.

Section 180 of the Constitution says that whenever it is necessary to appoint a judge, the Judicial Service Commission must advertise the position, invite the president and the public to make nominations, conduct public interviews of prospective candidates, prepare a list of three qualified persons as nominees for the office; and submit the list to the president whereupon, subject to subsection (3), the president must appoint one of the nominees to the office concerned.

“If the President considers that none of the persons on the list submitted to him in terms of subsection (2)(e) are suitable for appointment to the office, he or she must require the Judicial Service Commission to submit a further list of three qualified persons, whereupon the President must appoint one of the nominees to the office concerned,” it reads.

Experts and the opposition fear that if this section is amended, the independence of the JSC and the modicum of transparency that is exhibited during public interviews will be consigned to the dustbin of history.

The new constitution adopted in 2013 trimmed Mugabe's powers and no longer allows the nonagenarian to appoint judges on his own authority.

The Cabinet memorandum prepared by Mnangagwa seeks to convince his colleagues in the executive to embrace the proposed amendments and restore all appointing powers to Mugabe.

“It is proposed by this amendment that the office of Chief Justice, Deputy Chief Justice and Judge President of the High Court be appointed by the President after consultation with the Judicial Service Commission and that the office of Senior Judge of the Labour Court and the Administrative Court be appointed by the Chief Justice,” the memo reads.

Permanent secretary in the ministry of Justice, Virginia Mabhiza, said in her response to that the ministry was trying to convince Cabinet to amend the Constitution, a move that legal experts say requires a referendum.

But the Justice ministry is proposing that the changes to the Constitution should not require any referendum.

“While the interviews have been slated for the 12th December 2016 in line with Section 180 of the Constitution, the third respondent (Justice Minister) has already set in motion a process of amending the provisions of Section 180 of the Constitution.

“The amendment seeks to provide that the President will have the discretion of appointing the Chief Justice in consultation with the Judicial Service Commission,” she said.

The JSC is hunting for a new Chief Justice to replace Chidyausiku who is retiring from the bench at the end of February, after joining the Supreme Court in March 2001. He will reach the 70-year mandatory retirement age early next year.

Those shortlisted for interviews tomorrow are Deputy Chief Justice Luke Malaba; Justice Paddington Shadreck Garwe of the Supreme Court; Justice Rita Tambudzai Makarau, another judge of the Supreme Court; and Justice George Mutandwa Chiweshe, the judge president of the High Court, who is said to be a hot favourite of the Munhumutapa establishment.

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