MDC wants referendum on Chief Justice Bill

HARARE - Government must conduct a referendum on the proposed Constitution of Zimbabwe Amendment (No. 1) Bill, and the fate of the proposed constitutional reform must hinge on the public verdict, an opposition legislator has told the National Assembly.

Bulawayo South MDC MP Eddie Cross told the second reading of the proposed bill — which seeks to restore sweeping powers to the president to singularly appoint the chief justice — that it must be subjected to a referendum.

Lawmakers are debating the proposed Constitution of Zimbabwe Amendment (No. 1) Bill, even after President Robert Mugabe’s appointment of Luke Malaba as chief justice.

“If you want to amend the Constitution like this, let us take it back to the people,” Cross said.

“Let us have a referendum and if the referendum says yes, then I will go along with it. But for us to attempt to change the Constitution simply because the ruling party in this House has a clear two thirds majority and they can ram this thing through Parliament; over our dead bodies, because we are going to oppose this at every stage.”

The Bill was first published by Speaker of National Assembly Jacob Mudenda by notice in a Government Gazette on January 3.

Vice President Emmerson Mnangagwa, in his capacity as Justice, Legal and Parliamentary Affairs minister, presented the Bill in the National Assembly, just over 90 days after its gazetting — as required.

Curiously, the clear intent of the Bill is to ensure that its new procedure for filling vacancies in the post of chief justice would be applicable to the vacancy that no longer exists — the vacancy that was imminent when the Bill was drafted and gazetted and later became a reality when then chief justice, the late Godfrey Chidyausiku retired at the end of February. 

This 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 chief justice 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 chief justice).

“If the appointment of a chief justice, deputy chief justice 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 followed the correct constitutional course in appointing Chief Justice Malaba in accordance with the existing constitutional procedure, it is not clear if he intends appoint a new deputy chief justice in terms of same procedure — JSC advertisement, JSC public interviews and all.  

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.

“We spent two years on (public hearings on) this exercise, we consulted the entire country and then had a referendum in which the great majority of people voted in support of the new Constitution in its entirety,” Cross said.

“Now, the first act of the government is to bring forward an amendment which undermines one of the most fundamental principles of the new Constitution which is the separation of powers.”

Cross said the constitutional amendment comes at a time government has amended only four or five pieces of subsidiary legislation to bring them into line with the current Constitution.

“So, implementation of the new Constitution probably stands at about 5 percent, with 95 percent still to be aligned.”

Kadoma Central Zanu PF MP Fani Phiri said “the president should be given the power to appoint the judges who follow the ideology which will be prevailing at that time.”

“We do not need to have a judge who runs for 20 to 30 years and yet he will be running contrary to the sentiments of the ruling party,” Phiri said. 

“The judge should follow prevailing political situations.

“That is why, when we talk of constitutional amendment, we talk of two-thirds majority. 

“When you have two-thirds majority, it means you are supported by the people.

“That also empowers you to make whatever constitutional changes you may want.”

Comments (1)

If a constitution is a result of a referendum, that constitution should only be amended by another referendum. It does not make sense that only a few people will change what the overwhelming majority of people decided on. There are three arms of the government: the executive, the legislature and the judiciary. These three arms must operate independent of each other. If the President, who is the the Head of the executive appoints the Chief Justice, who is the Head of the judiciary, the principle of separation of powers is compromised. It means the President can exert pressure on the Chief Justice if the judges make judgements that are not politically favourable to the ruling party.

Ben Maricho - 13 June 2017

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