Constitution change draws outrage

HARARE - President Robert Mugabe has sparked outrage after unilaterally changing the new Constitution, reinstating his sweeping powers to appoint the Chief Justice and slamming shut any thoughts of progressive reform of judicial institutional independence.

This comes after the Judicial Services Commission (JSC) conducted its first ever public interviews for the vacant post of Chief Justice a fortnight ago, under a new regime reflecting Mugabe’s trimmed powers under a new Constitution adopted three years ago.

Mugabe gazetted Constitutional Amendment Bill (Number 1) last Friday, reinstating his singular authority to appoint the head of the judiciary, deputy CJ and judge president of the High Court, even though the 2013 charter dictates that candidates must be interviewed by the JSC.

In justifying the amendments, Justice ministry permanent secretary Virginia Mabhiza argued the drafters of the new charter did not realise that some JSC commissioners could become candidates for the position of the Chief Justice, rendering the interviewing procedure of judges by the JSC “inappropriate.”

Three candidates underwent the public interviews, veteran deputy chief justice Luke Malaba, Paddington Garwe, a Supreme Court and Constitutional Court judge; and Rita Makarau, chairperson of the Zimbabwe Electoral Commission (Zec) and secretary of the JSC.

Mugabe was then supposed to handpick one candidate from three names submitted by the JSC.

Justice George Chiweshe, a former head of the Zec and reported “hot favourite” of the Munhumutapa establishment, did not turn up for the JSC interviews for unknown reasons. Chiweshe is a retired member of Mugabe’s Zanla guerrilla forces, and the opposition alleges that as Zec head, he changed the electoral arithmetic of the 2008 March presidential election after the nonagenarian suffered a crushing defeat to MDC leader Morgan Tsvangirai by allegedly fiddling with the poll results and participating in other administrative heists. Chiweshe has not responded to the allegations.

Mugabe’s unilateral amendments through force of diktat have stirred the worst political crisis in Zimbabwe since the new charter was overwhelmingly approved by 95 percent of Zimbabweans in a March 2013 referendum, and raised fears of new turmoil.

The 92-year-old president has been scorned by opposition political parties, legal experts and political analysts.

Foes of Mugabe view the amendment as a sly manoeuvre to consolidate Zanu PF power, a move that will upset the envisaged political reforms ushered through the new charter that have kept tensions in check.

Morgan Tsvangirai’s opposition MDC said the move was a harbinger of worse things to come.

“These people never liked a Constitution that is people-centred and democratic. They are obsessed with power as an end in itself,” MDC spokesperson Obert Gutu told the Daily News yesterday.

“There is a real likelihood that the Zanu PF regime would abuse its ill-gotten two thirds majority in Parliament to tamper with several other clauses of the Constitution that the regime is not comfortable with.”

Mugabe’s ruling Zanu PF won in the highly disputed 2013 elections a two thirds legislative majority — enough to change the Constitution.

Gutu said: “The only solace that we have got is the fact Chapter 4 of the Constitution, that is, the Bill of Rights, is extremely difficult to amend because there will be need to go to a referendum.

“Essentially, Mugabe is a fascist and a dictator. He wants all executive State power to be vested in his office.”

Stephen Chan, a professor of world politics at the School of Oriental and African Studies at the University of London told the Daily News: “This is against a basic principle, shared across many of the world’s constitutions, to do with the separation of powers — whereby the judiciary is meant to be independent of both the executive, in this case President Mugabe, and the legislature.”

Dzimbabwe Chimbga, a project manager at the Zimbabwe Lawyers For Human Rights, said legally, Zanu PF through its proxies in government can actually sponsor amendments of the Constitution as they are doing and as long as they follow laid down processes in line with the new charter.

“What is of concern is the eagerness to amend a Constitution even before subsidiary laws have been aligned with the Constitution itself,” Chimbga said.

“The approach is consistent with the dictatorial approach of the current leader of centralising power and State capture of all institutions, in this case the judiciary.

“Despite the reported fissures within Zanu PF, Zimbabwe still is firmly and practically a one-party State. Their political objectives are always achieved even if it means manipulating the law and the legal system to achieve their ends.”

Taffi Nyawanza, a principal solicitor at Genesis Law Associates, said under Section 180 of the new Constitution, which has been operational since August 22, 2013, the president must appoint a CJ from a short list submitted to him by the JSC exercising its constitutional role.

“That is separation of powers at work but more importantly, it is a process which is publicly staged and so designed to engender public trust in the process,” Nyawanza told the Daily News yesterday.

“This process will now be short-circuited by the gazetted Statutory Instrument so that one man can now choose the head of the judiciary, by unknown criteria and all by himself, without checks and balance.

“The idea that stubborn and uncomfortable parts of the Constitution can just be panel-beaten to suit moments and whims is presidentialism gone wrong.”

A civil rights activist who declined to be named for professional reasons said: “The outstanding issues during the Constitution making process were to do with the excessive powers of the president.

“It is therefore ironic for the Vice President to be moving in that direction given that he is the so-called reformer. Could he be laying ground for his future dictatorship?”

When University of Zimbabwe (UZ) Law School fourth year student Romeo Zibani filed an urgent chamber application challenging the composition of the JSC interviewing panel and applicants, he found support from “third respondent” Vice President Emmerson Mnangagwa.

Mnangagwa, who also doubles up as Justice minister, said in an affidavit presented in court that he had already begun processes to amend Section 180 of the Constitution as requested by Zibani, a move that has since come to pass.

Crisis in Zimbabwe Coalition regional coordinator, Joy Mabenge, said Zanu PF never wanted a new Constitution.

“If anything, they are content with a new Constitution trapped in an old order. Zanu PF still glorifies the old order; that of authoritarianism and centralisation of power. They are taking the ‘one centre of power’ Zanu PF ideology too far,” he said, adding the ruling party was prepared to reverse all the small gains towards a democratic Zimbabwe embodied and codified in the new Constitution.

“Theirs is a very fast pace race to the bottom and Zimbabweans must truly be and remain vigilant,” he said.

Political analyst Maxwell Saungweme said a leopard does not change its spots.

“That’s the true Mugabe for you. He believes he is more powerful than the Constitution and more powerful than anyone else.

“Regardless of provisions of the new Constitution, he does as he pleases. You cannot change anything in Zimbabwe as long as Mugabe is there. He politically defaults to his old ways no matter under whatever conditions,” Saumgweme said.

Obey Sithole, a global development scholar, said this was true confirmation that Zanu PF was allergic to justice and constitutionalism.

He said Section 190 (2), which speaks of the functions of the JSC which is led by the Chief Justice, states that the “JSC must promote and facilitate the independence and accountability of the judiciary.” He said Mugabe was undermining that clause in the Constitution.

“So in short, this move by Zanu PF is a desperate attempt to capture the judiciary. If by any chance it sails through, then we can safely say we will be operating with only two arms of the State, the legislature and the executive because the judiciary would have been captured by the executive.”

Sithole said Section 328 (3) of the Constitution clearly states that there is need for the Speaker to give at least 90 days notice before a Bill is presented in the Senate and National Assembly.

“As it stands today, no notice with regards to the Bill has been tabled. So if we count 90 days from now, it technically dismisses the attempt because the process will go beyond the day we expect the successful person to assume office.”

The next Chief Justice to replace Godfrey Chidyausiku, who is retiring after reaching the mandatory 70-years of age,  is expected to assume office on March 1, 2017.

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