CJ Bill to undergo second reading

HARARE - Lawmakers will resume debate on the proposed Constitution of Zimbabwe Amendment (No. 1) Bill on May 2, despite President Robert Mugabe appointing Luke Malaba as Chief Justice (CJ).

The proposed Bill — seeking to give the president powers to singularly appoint the CJ — underwent first reading in the National Assembly on April 6, after it was presented by Vice President Emmerson Mnangagwa. 

A sitting of both houses of Parliament was supposed to adjourn three weeks ago for a scheduled three-week break, but the executive requested for an extension to wrap up the proposed Constitution of Zimbabwe Amendment (No. 1) Bill.

The Bill was roundly rejected by citizens during rigorous 11-day public hearings across the country.

Unlike the general run of bills, it did not require clearance from the Fortune Chasi-led Parliamentary Legal Committee (PLC) before being listed for the second reading, initially listed on the April 11 and 12 order papers.

Parliament failed to deal with the Bill — first published by Speaker of National Assembly Jacob Mudenda by notice in a Government Gazette on January 3 — before it adjourned for the Easter break on April 12.

In his capacity as Justice, Legal and Parliamentary Affairs minister, Mnangagwa presented the bill in the National Assembly, just over 90 days, as required, after its gazetting.

Curiously, the clear intent of the Bill is to ensure that the procedure for filling the CJ post would be applicable to the vacancy that no longer exists.

It only became a reality when CJ Godfrey Chidyausiku retired at the end of February. 

The Bill will amend the Constitution by substituting section 180, which provides for the appointment of three senior judges — omitting the Constitution’s existing provision for public interviews and recommendations from the Judicial Service Commission (JSC), and allowing Mugabe to disregard advice from the commission.

“The appointment procedure for all judges will remain as it is in the Constitution before amendment, except for the Chief Justice, Deputy CJ and the Judge President of the High Court,” the Bill’s memorandum reads.

“It is proposed by this amendment that these three offices will be appointed by the president after consultation with the JSC (under the previous Constitution the appointment of all judges was done in this way, except for the Judge President, who was appointed by the CJ).

“If the appointment of a CJ, deputy CJ or Judge President of the High Court is not consistent with any recommendation made by the JSC made during the course of the consultation, then the President will have to inform the Senate of that fact as soon as possible.”

While Mugabe appointed Malaba in accordance with the existing constitutional procedure, it is not clear if he intends to appoint a new deputy CJ in terms of same procedure — JSC advertisement, public interviews and all. 

Mugabe supports the amendment and will sign the Bill, if it makes it to his desk.

A new Constitution produced by an inter-party parliamentary committee agreed by Zanu PF and MDC negotiators before a referendum in 2013 curbed presidential powers by requiring the JSC — a panel of mostly senior judges and lawyers — to conduct  public interviews for the vacant post of Chief Justice, reflecting Mugabe’s whittled down authority under the new Constitution.

A University of Zimbabwe law student approached the High Court to stop the JSC interviews, arguing the process was flawed, citing an “incestuous relationship” between the candidates and the interviewing panel.

The High Court ruled in favour of the student, who also wanted Mugabe alone to appoint the Chief Justice.

But the JSC lodged an appeal at the Supreme Court, invalidating the High Court ruling and forging ahead with the interviews, which were beamed live on State television.

But the government is adamant that it is moving to amend the new Constitution to reinstate Mugabe’s sole responsibility.

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