The Constitution of Zimbabwe Amendment (Number 20) Act 2013, “the Constitution”, was enacted by the Parliament of Zimbabwe and the President on May 22, 2013 with some parts of it coming into effect on that day, while the rest came into effect with the assumption of office of the President in the first elections (in August 2013). The 2013 Constitution repealed the former (Lancaster House) Constitution and constituted amendment Number 20 of that former Constitution.
By Matshobana Ncube
In discussing the matter under review, a definition of a constitution will certainly be in order. American scholar, Paul Gewirtz defines a constitution as follows: first, a constitution is law; secondly, it is superior law on account of this it is superior over all other laws, in case of conflict with other law, it trumps (the pun is unintended) and the other law is rendered invalid, null or void. Thirdly, it is superior national law. Finally, the nature and character of a constitution is such that it is intended to endure for ages.
Consequently, a constitution is distinguishable from legislation in that it enjoys a higher rank in status.
Constitutions are usually made by the people and are enforceable against the politicians. Legislation, on the other hand, is made by Parliament and enforced against the people by the State. As such, in interpretation of legislation against the constitution, it should be clear that the constitution is supreme.
The Minister of Justice expressed the intention of amending the Constitution through the gazetting of Constitution of Zimbabwe Amendment No.1 Bill. In that regard, the minister wants Parliament to amend the section relating to the appointment criteria of judges set out in section 180 of the Constitution in respect of the Chief Justice, Deputy Chief Justice and Judge President of the High Court.
The net effect of the amendment is to fundamentally change the role of the Judicial Service Commission (JSC) and place it firmly within the ambit of the executive, precisely the minister of Justice and the president. A guise is infused in the Bill that seeks to suggest that the President will still do the appointment after consultation with the JSC. One needs not be a soothsayer to see that because these are important judicial offices with a bearing on the executive in many ways, there is now an attempt to yank away the appointment role from the JSC and make it an executive role.
This is evident where the Bill expressly says that the President’s choice prevails in case of conflict with the advice rendered by the JSC. All the President has to do is to inform Senate, a suborned body, about such a difference. After being informed of such a difference, one would have thought Senate would intervene between the President and the JSC and resolve the difference. But no, Senate is informed and is then goes mum, silent, zip! It has no mouth to pronounce itself whatsoever on the matter.
One needs not be a political scientist to see that this is a contrived scheme at subterfuge. The pretence is created that the Upper House of Parliament is being given a role to play in such a dispute when it is clear that there is no role at all that this body is being given in resolution of the difference. This is scheming par excellence by those behind the amendment, who have, as their ultimate goal, power retention at all costs.
One needs to understand the role of the judiciary in the high stakes game of Zimbabwean politics to fully understand the full import of this amendment. This then informs the basis of creating a suborned judiciary as is the prime purpose of the amendment.
In terms of section 92 of the Constitution, the President and his running mate (the running mate provision will come into effect in 2023) are elected directly by registered voters throughout Zimbabwe. The President is elected in a harmonised election, that is, together with Parliament and local authorities.
If the election of the President is contested, (and this has been the history of the presidential election in Zimbabwe since the year 2002, also 2008 and 2013 and the 2018 election has all the hallmarks of a contested election; an unclear voter registration system with room for disenfranchisement of millions of Zimbabweans around the world, unequal application of Public Order and Security Act by the police, arrest of dissenting voices etc), the resolution of such a dispute has to be done by the Constitutional Court within 21 days of the announcement of election results (or 14 days of the lodging of the petition which should be lodged within seven days of declaration of election results. The Chief Justice is the head of the Constitutional Court as well as the whole judiciary. The deputy Chief Justice is the second in command to the Chief Justice.
The Chief Justice and the Deputy Chief Justice are key persons in the Constitutional Court in that as the head and deputy of that court, they give leadership to the court. And as we have seen in the Jealousy Mawarire judgment that prematurely forced the country into an election in 2013, the Chief Justice and his/her deputy are the people who will write the judgment of the court in such high stakes cases. The rest of the bench usually concurs (meaning that they just agree with the judgment by the head of the judiciary).
In essence, the President and his/her ruling party, need a safe pair of hands at the head of the judiciary to deliver a knockout judgment to any petition by the opposition. One does not need a chief justice, who will uphold an electoral petition by the opposition challenging their “resounding”electoral “victory” at all costs. This explains why the appointment of the chief justice to succeed Godfrey Chidyausiku is such a contested matter. The appointment of an independent, professional chief justice is therefore, an antithesis to the maintenance of such a “victory” at all costs. As such, having a trusted chief justice becomes the raison d’etre to maintaining a grip of power.
That way one knows that power is safe, by hook or crook. The presidential election petition is, therefore, a high sounding nothing, as the victory is guaranteed by the President’s men.
At the level of the High Court, the appointment of a Judge President by the executive through the President is a boon in the ruling party. This is because, if there are contested elections in a number of constituencies, then the composition of the Electoral Court can be done in such a manner that friendly judges (to the ruling party) are appointed to that court. The judges of the Electoral Court are appointed by the Chief Justice after consultation with the Judge President.
Moreover, the new Constitution confers a plethora of rights on the citizenry and residents as well as persons in Zimbabwe (a person is defined in the Constitution to mean an individual or body of persons whether incorporated or unincorporated). This means civil society bodies, companies, various bodies and individuals have a wide standing to approach the courts at any time seeking to enforce rights in or outside the bill of rights or challenging government conduct. And this needs to be understood within the context of section 171 of the constitution conferring constitutional jurisdiction on the high court. This means the High Court is bound to hear a number of constitutional cases, which may constitute a nuisance to the government or the ruling party.
A mechanism, therefore, needs to be put in place that ensures that the judges who handle such cases are reliable to the appointing authority so that the judgments that are rendered from such challenges are good to the executive. The safety valve is, therefore, to have the President selecting the Judge President who in turn does case management in that he is the allocating authority of cases that are filed in the High Court.
As such, in allocating these cases, one has to see that sensitive cases are handled by the right judges (usually called executive minded judges) and that decisions are rendered on any other basis than the law. Other considerations other than the law are then taken into account in deciding the matter before a judge. Legal scholars see this as an aspect of corruption under the guise of judicial independence. Such is clearly inimical to judicial independence.
In other instances, the Judge President can decide to handle the matter him/her self. The appointment of a pliant Judge President is, therefore, important to a ruling class that wants a judiciary that functions as an appendage of such a class. The proposed amendment to the constitution is indeed a living testimony to such.
The Supreme Court is also an important court in creating a pliant judiciary. The Chief Justice is the head of the Supreme Court in terms of the Constitution. The Chief Justice can sit in those cases that might have escaped the safety valve at the High Court and, thus, be able to correct the mistakes made at the lower court.
It must be noted also that the Constitution requires the President to turn to the Constitutional Court for advice where s/he has a conflict with Parliament in the passage of Bills. A safe pair of hands in the Chief Justice, who has been appointed by the President, is therefore, a must in such situations to those who are not firm believers in a democratic ethos. In essence, to an undiscerning eye, the proposed amendment bill is so benign that it is so reasonable. To the discerning, however, it reveals more that it says on the surface. It is a contrived act at power retention by whatever means necessary.
It is, therefore, clear to anyone looking at the unfolding drama to see that there is meticulous planning so as to bring about a suborned and pliant judiciary in Zimbabwe.
The appointment process in terms of the section 180 route is proper in the circumstances (though the correctness of its invocation by the JSC at this time is doubtful) and has been used before to get rid of many an undeserving person to the office of judgeship. The public has seen for itself the pretenders to the office of a judge, the media has reported widely such that unqualified persons have fallen by the wayside.
This is not to suggest that the 180 appointment system is perfect. It has its own imperfections. Chief among these is that the President has a veto power over certain lists that the JSC has forwarded to him. Secondly, the President is given three names from which he has to choose one. Why afford him/her that luxury? Why does s/he not given one name, which s/he has to appoint, if s/he is opposed to such a name, s/he has to give reasons. In Zimbabwe, unlike in South Africa, the President does not have to explain her/himself why s/he has rejected a name of a potential judge. Such clauses are the hallmark of the creation of demagogues, unaccountable presidents, some little gods of sorts!
However, the system, despite its flaws, is better as it has some partial aspects of transparency and the public is involved in the process; through nominations and also through the participation in the interviews, which are done in public. The era of having judges appointed at night in secrecy while we are all asleep is old and antiquated that it cannot sit well with a judiciary that derives its power from the people as is required by the Constitution. Judges should come from the people in that they should be nominated by the people, interviewed in front of the people and once in office derive their authority from the people and not from the politicians.
Consequently, all judges are better off appointed in terms of section 180 of the Constitution that through the proposed amendment. And there is no sound legal basis to have one set of judges appointed in terms of section 180 while another set has its own appointment system. The Bill, therefore, seeks to bring about a discriminatory practice in the appointment of judges and, therefore, violates the equality clause in the Constitution.
In terms of the Constitution, a person is discriminated against if they are subjected directly or indirectly to a condition, restriction or disability that others are not subjected to. Why would one potential candidate for judgeship be subject to a nomination process, public interviews and being subjected to a shortlist when another is just appointed by the President from the blue? One is being subjected to a condition, restriction and disability, which the other person is not. That is unconstitutional no matter how hard and hoarse the proponents of the amendment shout. The Bill needs to be subjected to the constitutional test by a challenge at the Constitutional Court.
That scary spectre of amendments to the Constitution, which the people of Zimbabwe thought they had assigned to the dustbin of history by enactment of the 2013 Constitution is back. The writing of the Constitution and the huge amounts of money that was spent in that regard was all a waste of time and resources. All were taken for a ride, the ruling party never wanted constitutional reform and as such they have embarked on a path to undo all that the people of Zimbabwe did in writing a new governance charter for themselves.
The ruling party is intent on bringing about its own Constitution, something in between the rejected Chidyausiku draft and the Kariba draft.
Clearly, the long winter of amendments is once again upon us. And once that door is opened, there is no stopping the number of amendments that will be made to the 2013 Constitution.
Clearly, something is rotten in the state of Denmark!
Matshobana Ncube is a lawyer. He writes in his personal capacity