A UNIVERSITY of Zimbabwe student has dragged outgoing Chief Justice Godfrey Chidyausiku to the Constitutional Court (ConCourt) contesting a ruling that set aside an application challenging the selection of the top judge’s successor.
BY CHARLES LAITON
Romeo Taombera Zibani, whose bid to stop the ongoing process to select Chief Justice Chidyausiku’s successor using provisions in the Constitution fell flat a fortnight ago after the Supreme Court ruled in favour of the Judicial Service Commission (JSC), is now challenging the composition of the bench that threw out his case.
The JSC successfully appealed against a High Court judgment that sought to halt interviews for the next Chief Justice in the Supreme Court.
Vice-President Emmerson Mnangagwa had backed Zibani’s case, arguing that the government was already in the process of amending the Constitution to give President Robert Mugabe the sole right to pick the country’s top three judges.
On Wednesday, Zibani, through his lawyers Venturas and Samukange Legal Practitioners, filed the latest ConCourt application arguing that the appointment of retired Supreme Court judge, Justice Vernanda Ziyambi, to preside over his matter was unconstitutional.
He cited President Robert Mugabe, Mnangagwa, Justices Chidyausiku and Ziyambi as respondents.
“The appeal was procedurally set down and was heard by Justices Ben Hlatshwayo, Bharat Patel and retired Justice Ziyambi, who was included after her purported appointment, which is the basis of this application,” Zibani said.
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“I submit that the fourth respondent (Justice Ziyambi) was not eligible for appointment, having reached the age of 70 and having retired in 2016.
“Her appointment was, therefore, unconstitutional.
“The appointment is in contravention of section 186(2) (of the Constitution), which reads as follows: Judges of the Supreme Court, the High Court and any other judges hold office from the date of their assumption of office until they reach the age of 70 years, when they must retire.”
Zibani averred that Justice Chidyausiku acted unconstitutionally by appointing Justice Ziyambi.
“I submit that when the Supreme Court sat to hear my case on February 13, 2017, it was not properly constituted, as there were only two judges qualified to hear the case,” he said.
“The sitting did not constitute a Supreme Court bench, as is required by law and, therefore, the judgment by that court is a nullity.”
Zibani, who was cited as the first respondent in the JSC matter, was barred from participating in the Supreme Court hearing after the judges ruled that he had not filed heads of argument to enable him to be part of the proceedings. Justice Chidyausiku is set to retire next week.
The selection of the Chief Justice has been marred by Zanu PF factional politics amid allegations that a faction linked to Mnangagwa wants Judge President Justice George Chiweshe to succeed Chidyausiku.
However, Deputy Chief Justice Luke Malaba emerged as the top candidate in public interviews held by the JSC in December last year as per the Constitution.
He was followed by JSC secretary Justice Rita Makarau and Justice Paddington Garwe.