Chief Justice Bill awaits Mugabe assent

HARARE - President Robert Mugabe is expected to sign into law this week a Bill that restores his singular authority to name the Chief Justice.

Parliament passed the controversial Constitution of Zimbabwe Amendment (No. 1) Bill last month, with the Bill rammed through both houses through Zanu PF’s super majority. The changes now await presidential approval.

The law, passed by both houses of Parliament, amends section 180 of the Constitution and gives sole and unfettered discretion to President Mugabe to appoint the chief justice, deputy chief justice and judge president of the High Court of his choice whenever there are vacancies for such posts.

According to General Notice 485/2017, published in Friday’s Government Gazette, the Bill was sent to Mugabe for assent and signature on August 22 and has not been returned.
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 Judicial Services Commission (JSC) — a panel of mostly senior judges and lawyers — to conduct  public interviews for the 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 was adamant, and used Zanu PF’s two thirds majority to amend the new Constitution to reinstate Mugabe’s sole responsibility.

The National Assembly passed the Bill by a vote of 182 for and 41 against, while 53 Senators voted for the Bill, and 19 voted against.
The Bill, if assented to by Mugabe, will affect the manner of appointment of the new deputy chief justice, a post that has been vacant since March 27, when Luke Malaba was appointed Chief Justice.

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.
During the Second Reading debate, MDC Senators argued that it was wrong in principle to amend the Constitution so soon after a lengthy and very expensive Constitution-making process had produced an agreed document subsequently approved by the country’s voters in a referendum.

They also protested that the Bill’s changes in the method of appointing top judges would detract from the independence of the judiciary.
Responding to the debate, Vice President Emerson Mnangagwa, who steered the Bill through Parliament, rubbished both arguments.

He asserted that as the Constitution allows amendments to be made at any time, no matter how soon, there can be no valid objection to an amendment put forward by a party that commands the special parliamentary majorities needed to have amendments passed.
He contended that the new appointment procedure would in no way detract from the independence of the judiciary.

“Let me assure the Senate that this is not the only thing we intend to amend in the Constitution,” Mnangagwa said.
“There are many other areas which we are looking at, which we feel should be amended. It is not a question of being a Zanu PF government in power, but it is a question of a democratic process.

“A democratic process requires that the party that has the majority after a general election should form a government and it has a programme. If the Constitution forbids the implementation of a programme, they have a choice to amend the Constitution so that the programme can go forward.
“If next time, they are not in power and some other political party comes in and thinks that they must amend, the Constitution allows them to amend — but for now we are amending, because we feel it must be amended.”

Crisis in Zimbabwe Coalition, an alliance of 300 civic groups, has said “this shameless action” will open a floodgate of many amendments to the Constitution by the government and said the Bill is one of the clauses that were rejected during the Constitutional Parliamentary Select Committee (Copac)-led constitution-making process in 2012 regarding executive appointments.
“In the face of impending elections in 2018, the amendment strengthens the establishment of competitive authoritarianism and marks an end to the principle of separation of powers, as the judicial arm becomes subjected to presidential control reminiscent of the Lancaster House Constitution,” said the coalition, which groups various rights organisations.

Morgan Tsvangirai’s former advisor and constitutional law expert Alex Magaisa has said Zanu PF must not be allowed to get a two-thirds majority in the 2018 election.
It risks placing Mugabe above the law, a reversal of the gains made in the 2013 Constitution that markedly whittled down the power of the president.

“This is why a key battle ground in next year’s elections is over the two thirds parliamentary majority,” Magaisa said.
And on the campaign trail during the on-going youth interface rallies, Mugabe is urging supporters to make sure that the ruling party wins the 2018 election with at least a two-thirds majority.

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