The recent furore surrounding the process set in motion by the Judicial Service Commission (JSC) and the application by Romeo Zibani to stop that process, the interdict issued by Justice Charles Hungwe and the subsequent appeal by the JSC makes for sad reading.
Opinion: Matshobana Ncube and Kucaca I Phulu
All the parties involved, including the judge, appear to have missed an appreciation of the import of a relevant constitutional provision in the resolution of the matter.
The Constitution creates the JSC, whose prime function is to render advice to the government on judicial related matters.
(i) Promotion and the facilitation of the independence and accountability of the judiciary and ensuring the efficient, effective and transparent administration of justice in Zimbabwe and having all powers in that regard.
(ii) Making regulations relating to the above matters with the approval of the Minister of Justice.
Section 180(2) of the Constitution then provides for the appointment of the Chief Justice, the deputy Chief Justice, the Judge President of the High Court and all other judges of the High Court. The relevant text of the Constitution provides that:
(2) Whenever it is necessary to appoint a judge, the Judicial Service Commission must —
(a) advertise the position;
(b) invite the President and the public to make nominations;
(c) conduct public interviews of prospective candidates;
(d) prepare a list of three qualified persons as nominees for the office; and
(e) submit the list to the President;
In October 2016, the JSC flighted adverts for President and the members of the public to make nominations for the position of Chief Justice.
The final list of nominations had four names, namely Deputy Chief Justice Luke Malaba, two judges of the Supreme Court, Justices Rita Makarau and Paddington Garwe, and Judge President of the High Court, Justice George Chiweshe.
Five days before the interviews were to be conducted, Zibani lodged his court application for a prohibitory interdict against the JSC undertaking the interviews for the four candidates as indicated above.
He succeeded and the subsequent judgment by Justice Hungwe has been thoroughly analysed and heavily criticised by law expert Alex Magaisa. I agree, in certain respects, with the criticism by Magaisa.
Of concern, however, is whether the JSC in commencing the process by flighting the adverts was acting lawfully. Is it the intention of the framers of the Constitution to cause a person to be selected and appointed to a position where there is an incumbent in place?
For certainly, the selection is for the purpose of appointment, never mind the lackadaisical manner the President has acted in making the appointments.
The wording of the Constitution is to the effect that “whenever it is necessary to appoint a judge…”, the JSC has to set in motion the process outlined in section 180(2) of the Constitution, which is highlighted above.
In any other situation, the JSC cannot set in motion that process. So clearly, the necessity should arise from the need to appoint and not any other situation.
Interpretation of constitutional clauses outside of the Bill of Rights has, to a limited extent, its own rules. The interpretation of the rest of the Constitution outside the Bill of Rights is rather narrow and restrictive.
The approach in interpreting the Constitution is to employ a broad and purposive approach, which the courts in Zimbabwe have adopted time and time again.
Literal interpretation will suffice if it is in consonance with the purposive interpretation of the Constitution. If it is not, then it results in absurdity and should be disregarded.
Now turning to the provision in issue in section 180(2) of the Constitution, the words used are “whenever it is necessary to appoint a judge…”.
The word “whenever” is indicative of time, meaning any time, while the word necessary means, according to the dictionary, essential or inevitable.
The sum total of the meaning of the phrase “whenever it is necessary to appoint…” must be understood to mean that there must be a objective necessity at any given time to appoint a judge for one to put in motion the provisions of section 180(2) of the Constitution.
Such a necessity should be premised on time in the sense that it has to be done at the particular time and should be done for the purpose of putting a judge into office.
When the JSC flighted the adverts for a new Chief Justice in October 2016, there were about four months remaining before the expiry of the incumbent Chief Justice’s term of office.
Having regard to the fact that there was still in office a Chief Justice, could it be said that there was a felt necessity at the time to appoint a new Chief Justice while no vacancy existed?
Because when the names are then forwarded to the President, he must appoint the person he selects from the shortlist to the position of Chief Justice.
The President is not to sit around and brood over the names, but should, on receiving the list, without delay, pick one from the three and, thus, name such a person Chief Justice. This is because there exists a necessity that cannot wait, to appoint a judge.
Now, the challenge arises that when the process is put in motion, there is no vacancy to be filled but an anticipated vacancy. This is where the problem arises.
On the one hand, the sitting Chief Justice is part of the JSC that has to select the new Chief Justice and there is a palpable fear that he, while being the head of the judiciary, may influence the process in such a way that his preferred candidate eventually comes tops of those interviewed.
On the other hand, it creates an absurdity in that an individual could then potentially be appointed a Chief Justice while there is in place a sitting Chief Justice with the potential of destabilising the Judiciary with the existence of two centres of power.
The felt necessity to appoint a Chief Justice is when the incumbent Chief Justice has vacated office. In that situation, there is no doubt that the need arises to appoint a Chief Justice.
That need cannot arise while there is a Chief Justice in place. When the Chief Justice retires, the Deputy Chief Justice is elevated to take his position, albeit on an acting capacity, in terms of Section 181 of the Constitution.
This is not new; Anthony Gubbay took over from Enoch Dumbutshena as an acting Chief Justice before he became a substantive one.
In fact, the need to appoint a judge arises where a vacancy occurs on the bench, where the bench has been expanded or where a new court has been set up like is mooted to happen in 2018 with the opening of the Hwange and Gweru court as permanent High Courts.
The vacancy occurred recently with the opening of the courts in Masvingo, warranting appointment of new judges or transfer of some sitting judges.
We do not appoint a judge on anticipation that a certain judge is going to reach 70 years at the end of next month. We wait until he vacates office and then bring a new judge or that very judge as an acting judge.
So many judges have retired at the age of 70 like Justice Misheck Cheda, Justice SKM Sibanda. Justice Nicholas Ndou also retired before attaining such an age as did Justice Cheda from the High Court of Bulawayo.
These judges, save for Justice Sibanda, retired within the 2013 constitutional dispensation.
The JSC knew that they were leaving and did not invoke section 180 before they left office. So what is new in respect of Chidyausiku?
We do not appoint judges now in anticipation of the new courts that will be established in Hwange and Gweru.
Even when we know these offices on the way as we have planned for them. We first create the offices (read vacancies) and then staff them and not the other way round.
There is nothing special about the appointment of any judge including the Chief Justice, as the appointment of all of them is the same.
There is, therefore, nothing spectacular about the vacation of office by any judge including the Chief Justice.
Imagine a situation wherein the Chief Justice winds up dead in the morning, or vacates office due to illness or a sudden resignation or a suspension from office.
Imagine where the suspension results in the President removing him from office on account of the infraction of any one of the grounds provided for in the Constitution, the section 180(2) process cannot be done and concluded before the vacation of office by a Chief Justice.
That process cannot be deployed without an acting Chief Justice being brought into office in the interim.
In the final analysis, it is doubtful if the JSC acted on a proper interpretation of section 180(2) by putting in motion the process of selecting a Chief Justice while the incumbent was still in office.
The result is that the country has been plunged into a mini-crisis of sorts as various players have been pitted against each other in a dogged fight to have a Chief Justice appointed in a manner that appears most proper to them.
This could have been avoided if Justice Chidyausiku had been allowed to retire and then a process put in motion to find a new Chief Justice.
The risk of a vacuum in the office of the Chief Justice does not exist at all, as the deputy Chief Justice is constitutionally empowered to take over on an acting capacity.
While Justice Hungwe’s judgment has been criticised on other grounds, he appears to be on point when he states that there is no crisis created by the retirement of the Chief Justice. The crisis is one that is deliberately created and could have been totally avoided.
Unlike a political office like that of a Member of Parliament, which ordinarily will result in a vacuum when the incumbent’s term of office lapses, there is no such vacuum in the judiciary at all to warrant deployment of the Section 180(2) process.
The deputy Chief Justice, or in his absence, the most senior judge of the Constitutional Court takes occupancy of the vacant office in terms of section 181.
As such, the process put in motion by the JSC was an unnecessary haste. It should have been invoked in March 2017 after the incumbent had left office.
There are various explanations for the rush to appoint a successor to Justice Chidyausiku before he leaves office.
The first one may simply be that they overlooked the challenges posed by this move in a bid to be efficient.
The second could be that the judiciary is under pressure from the executive to conclude the matter in a manner that is satisfactory to it.
The third is that the incumbent Chief Justice would have liked to be able to influence the process, which is a natural inclination of an outgoing office holder, who would like to secure his legacy. There is a fourth, which we will allude to after disposing of the first three.
The first two are highly unlikely because efficiency cannot be pursued when the result is the chaos that has been made plain by the circus in which the process finds itself and the executive is not being fingered in the commencement of the process.
What is probable is that the Chief Justice and the JSC were quite open to the idea of the incumbent being involved in the choice of his successor; we wonder whether in its meetings, the JSC did discuss the appropriateness of this position and how they concluded the matter.
In our respectful view, this matter could have been avoided and indeed, it does not appear that it is envisaged by the Constitution and indeed by good practice.
Pundits and members of the public have put down as a motive for all these goings-on the factionalism within the ruling party as the underlying motives for all these machinations.
Indeed, these are reasonable assertions; however, a motivation that has escaped many pundits as a possible motivator for the actors involved is one of tribalism.
This is the fourth possible explanation for the hurry to secure a Chief Justice before the incumbent leaves. We have no doubt that the succession politics is key to these developments, however.
Many have argued that people from the minority tribes, particularly from Matabeleland region, are only good as deputies, in terms of this approach, it is unconscionable for Justice Luke Malaba to be allowed to act as a Chief Justice until a substantive Chief Justice is appointed.
This is moreso when there are elections looming in 2018. There has been no suggestion that Justice Malaba is inept or unfit to hold office, indeed he has ably acted before such that there should be no perception that there would be a crisis if he were to act as Chief Justice, even in this sensitive period.
This perhaps is the explanation why those seeing the matter through the lens of factions put at the head of their alleged factions either Justice Makarau or Justice Chiweshe.
Justice Malaba does not feature even in the factions theory. What we have merely tried to put forward is another view of the matter, which must not be ignored, indeed the Deputy Chief Justice must have been humiliated as the impression painted by the totality of these circumstances, where every other judge below him is bandied about as candidate and he is not mentioned as a serious contender.
In any event, we need to hearken to the Constitution, which calls upon the appointment proceeds to reflect broadly the diversity, regional and gender balance of Zimbabwe.
We do not conclude that this explanation we proffer is the only explanation, but only say that in the matrix of explanations for the mayhem, this one should also be seriously considered as a possible explanation or at least be acknowledged as a perception that others reasonably hold.
Matshobana Ncube and Kucaca Phulu are lawyers. They write in their personal capacities.