ZIMBABWE’S estimated 14 million citizens are today holding their collective breaths as the Constitutional Court bench made up of nine men and women sit to make a determination in one of the greatest political-legal cases since the country was founded.
BY RICHARD CHIDZA
Rivalled only by the trial of nationalist Daniel Madzimbamuto in 1965 that thrust the spotlight on Rhodesian leader Ian Smith’s regime, opposition MDC Alliance leader Nelson Chamisa’s petition to have the results of last month’s election nullified is a historical epoch of epic proportions with far-reaching ramifications for the country.
Nine Constitutional Court (ConCourt) judges will today preside over a matter which will decide on who will lead Zimbabwe for the next five years. High-level sources revealed to NewsDay that Chief Justice Luke Malaba will lead a cast of eight judges picked from the 14 Supreme Court judges. These include Deputy Chief Justice Elizabeth Gwaunza, former Zimbabwe Electoral Commission (Zec) chairperson Justice Rita Makarau, Justices Paddington Garwe, Chinembiri Bhunu, Baratkumar Patel, Ben Hlatshwayo, Tendai Uchena and Lavender Makoni.
Below are brief profiles of each of the judges:
Chief Justice Malaba
Justice Malaba studied in the United Kingdom and locally at the University of Zimbabwe. He worked his way from being a prosecutor, magistrate to the Supreme Court inside 20 years when he was appointed by former President Robert Mugabe in 2001. He became Deputy Chief Justice in 2008 before taking over as Chief Justice last year.
Some of his most notable rulings include a dissenting judgment in the controversial 2013 case in which Harare man Jealousy Mawarire sued Mugabe compelling him to set the election date. Justice Malaba also dismissed an application by Mike Campbell and a group of white former commercial farmers who had taken their case to the Sadc Tribunal challenging seizure of their farms. The group won the case, but failed to enforce it in Zimbabwe after Justice Malaba dismissed their application on grounds that the Sadc Tribunal had no jurisdiction over the matter and that the Supreme Court was not obliged to comply with or enforce the orders.
Justice Gwaunza was admitted as a legal practitioner of the High Court of Zimbabwe in 1987. She co-founded and was the national co-ordinator of the Women and Law in Southern Africa Research Project between 1989 and 1995. She went on to work in both private and public sectors before she was appointed High Court judge in 1998 before being elevated to the Supreme Court in November 2002, becoming the second woman to get the honour after Justice Vernanda Ziyambi.
In May this year, Justice Gwaunza led the ConCourt in dismissing an application by three citizens demanding that Zimbabweans across the world be allowed to vote in last month’s elections. Ironically, Chamisa’s lawyer Thabani Mpofu represented the three diasporans, Gabriel Shumba, Sibonile Mfumisi and Darlington Nyambiya. Justice Gwaunza is also the first woman to hold the post of Deputy Chief Justice of Zimbabwe.
Justice Garwe is one of the most experienced jurists who will sit on the bench tomorrow. He joined the legal fraternity in 1979, and began working his way from a young assistant magistrate, clerk of court and prosecutor before being appointed full magistrate in February 1980.
From there, Justice Garwe rose through the ranks, becoming a regional magistrate at age 26 in 1984, and chief magistrate at only 31 before making his way to the High Court at age 35 as one of the most promising legal minds of his generation. He was made Judge President of the High Court of Zimbabwe in 2001 and promoted five years later to the Supreme Court. In 2013, he became a judge of the Constitutional Court.
His highest profile case was the trial of now late former Prime Minister and opposition MDC-T leader Morgan Tsvangirai in the infamous treason case where he acquitted the former trade unionist for lack of sufficient evidence to nail him. Garwe also ruled in favour of white farmers at the height of the land reform programme.
Justice Bhunu was appointed Senior President of the Labour Court in 2001 before joining the High Court in 2003. He then moved to the Supreme Court and eventually Constitutional Court in 2015.
Justice Bhunu’s most notable case was the conviction and jailing of three MDC-T activists Yvonne Musarurwa, Tungamirai Madzokere and Last Maengahama to 20 years each for the murder of police Inspector Petros Mutedza. The marathon trial lasted five years and was only concluded in September 2016.
Zimbabwe’s first female Judge President, Justice Makarau studied law at the University of Zimbabwe and began her career as a public prosecutor. She left to go into private practice before returning to public service as secretary for legal affairs at the then Parastatal Commission in 1988. She served in the Constitutional Commission from 1998 to 2000 before she was appointed High Court judge in December 2000. Six years later, Justice Makarau was appointed Judge President and in 2010 was promoted to the Supreme Court. Three years later, Justice Makarau was at the formation of the Government of National Unity appointed Zec chairperson.
She was to leave the position in a cloud in the aftermath of former President Robert Mugabe’s ouster and was replaced by current Zec chairperson Justice Priscilla Chigumba.
Among her major rulings include granting women the right to help children access identity documents after former Zanu PF MP Margaret Dongo brought a case before the courts. Dongo had been turned away by the Registrar-General Tobaiwa Mudede’s Office where she was told she was not the natural guardian of her child.
Justice Patel went to the then University of Rhodesia where he studied law and qualified as a barrister at Inner Temple in England about 1975. He obtained his master’s degree in law with the University College, London.
He returned to Zimbabwe and worked in the public service as legal counsel. In 1993 he headed the division of legal advice in the Attorney-General’s Office before his appointment as Deputy Attorney- General in August 2000. Twice he acted as acting Attorney-General between appointment as High Court Judge in 2005. In 2013, Justice Patel was appointed to the Supreme Court as Judge of Appeal and simultaneously as a Constitutional Court judge.
Known for his sharp constitutional logic and reasoning, Patel penned the judgment that reversed the High Court decision in the Zibani v JSC (Judicial Service Commission) matter where the court ruled that a constitutional provision was unconstitutional. Justice Patel reasoned that the Constitution could not be replaced or subverted based on a Cabinet intention to amend the Constitution. Together with his fellow justices, the case was dismissed, and the judgment is still seen as one of the most spirited protections of the Constitution and the independence of the judiciary despite the amendment allowing the President to appoint the Chief Justice and the Judge President circumventing the public interviews. Along with Justice Malaba, Justice Patel issued a dissenting judgment in the Mawarire case that pushed Zimbabwe into snap elections in 2013.
Justice Hlatshwayo was appointed as a High Court judge in the year 2000. He was later promoted to the Supreme Court in 2013. In the same year, Justice Hlatshwayo was also appointed as a judge of the Constitutional Court.
Justice Hlatshwayo was part of the Supreme Court bench that ruled in favour of Masvingo’s first black mayor Thomas Zawaira’s 10 children born out of wedlock giving them right to inheritance. Zawaira died in 2003. After his death, his estate was shared between his wife Felistas and her six children.
The Supreme Court reversed the High Court decision arguing all the children are entitled to an inheritance, in the same way, they are entitled to maintenance. The court also said that spouses of cheating partners can sue for adultery
Justice Uchena was appointed President of the Administrative Court in 1998. In 2003, he was appointed as a High Court judge. He was promoted to the Supreme Court and to the Constitutional Court in September 2016.
In February 2018, Justice Uchena was appointed as head of the Commission of Inquiry of Sale Of State Land. The Commission was created to look into the sale of State land in and around urban areas since the year 2005. It was given 12 months from the day of the appointment to conclude its task.
She is one of only two appointees to the ConCourt bench by President Emmerson Mnangagwa since he took over power last year. Justice Makoni has 14 years’ experience on the High Court bench as the head of the Civil Division.