HomeOpinion & AnalysisJudiciary being corroded by political expediency

Judiciary being corroded by political expediency


Cyprian M Ndawana

DEAR President Emmerson Mnangagwa,

Your Excellency, going to the end of the world to fasttrack processes to amend the Constitution was the worst objectification of citizenry. As I see it, enactment of extreme regulations was done with rigidity, with no due consideration for their implications on the populace.

It raised curiosity that Constitutional Amendment Bill No 2 was pushed through the Legislature. Even casual observers were shocked by the undue haste which the Senate also passed the Bill.

However, it was apparent that its enactment was bound to ignite dispute. True to expectation, it torched an unprecedented constitutional crisis.

Your Excellency, that you and the Chief Justice are being dragged to court puts the country in an akward situation.

Aptly, the rationality and legality of the Bill are not questionable. At face value, they appeared likely to cause societal disharmony. There will always be a question mark over its spirit and letter.

Among other objectives, the Bill sought to give you exclusive power to appoint judicial staff of your choice.

This objective is not in tandem with the constitutional mandate of Parliament. One wonders how bestowing unfettered power on yourself to choose senior judges, and to extend their tenure beyond retirement age can be justified.

Methinks such power ultimately pervades the essence of judicial independence.

Your Excellency, it was inconceivable that the Legislature saw nothing untoward in giving you sweeping powers to decide who occupies top Judiciary positions. Yet, it is all too common that without separation of power, absolute power corrupts absolutely.

Strangely, the inevitability of abuse of power when concentrated in an individual never crossed their minds. Despite numerous drawbacks resulting from immortalising a mortal, who like all of us is subject to human failure, the Legislature was nonetheless unheedful.

It is an open secret that ruling party legislators are obsequious. Their survility pleases you. Actually, it is expected of them to fawn you. Their prime duty is to venerate you.

It is the norm for speeches by party and government officials to be underscored by the statement: “Second Republic under the leadership of His Excellency ED Mnangagwa.” Lo and behold, they commend you with tedious repetitions that pass for parroting.

It was with herd instincts that the Legislature voted en-masse to unbridle you to make key judicial appointments. They vested power in you to appoint the Chief Justice, his deputy, and Judge President without following transparent selection processes.

It never ceases to arouse a grave anger in me that ultimately, Your Excellency accepted the unfettered powers. All things being equal, no President in this era needs to amass such power.

Yet, no sooner had you signed the contentious Bill into law that you extended the tenure of Chief Justice Luke Malaba by five years. As I see it, Your Excellency, you ought to have anticipated the repercussions of extending Malaba’s tenure.

You must have been sufficiently intuitive to sense the eruption that would ensue and result in the mother of legal challenges which gives birth to a constitutional crisis. However, like the Titanic captain, you went ahead, in spite of the consequences.

You gloat about being commended by your subjects, although the list of your unfulfilled promises, which includes combating corruption and naming and shaming land barons, stands taller than the Tower of Babel.

Also, the First Lady enjoys being praised, even for trivia. Her ventures, which started with undercover visits to public health institutions and have graduated to nationwide crisscrossing in the company of television crews to hand out an assortment of donations.

It deserves to be stated with all due respect that the heedless zeal of parliamentarians is the weakest link in your leadership chain. Their ingratiation is not subtle as there are always ready to grab whatever opportunity to commend you.

Essentially, parliamentarians are meant to be guided by their convictions. Yet, they carry out weather checks before contributing to debates. However, if they had discharged their mandate with due attention, the unfolding constitutional crisis could have been avoided.

Evidence abound that the perversion of turncoat opposition lawmakers has since slumped to the lowest. Their abject servility is despicable. It is treacherous that they also ingratiate Your Excellency as evidenced by their voting for the contentious Bill.

It was apparent that adherents to constitutionalism, spurred by respect for human rights, were bound to take up cudgels on behalf of citizenry. They could not be expected to abrogate their inherent responsibility of caring because thet want to wrestle the rule of law from wantoners.

As legal challenges emanating from the Malaba tenure extension flood the court, one thought predominantly fascinates me. It vexes my mind as I seek to understand motivations for “a soft as wool President” to ever need such despotic power.

Amid the groundswell of legal challenges, it no longer suffices for Your Excellency to wave the magic wand. If you ever needed the combined blessings of the Holy trinity, methinks you need it now more than ever before. As I see it, you are in a maze of a constitutional crisis.

My conviction is that the law you relied on in extending the tenure of Malaba will be struck off the statutes if it were to be subjected to scrutiny. A law that emanated from a Bill that sought to grant Your Excellency power to appoint judges is inherently unconstitutional.

Granted, the Legislature is mandated to formulate laws for the peace, order and good governance of the country. It stands to reason that a law that bestows in you unfettered power to appoint senior judges is out of the constitutional purview of Parliament.

Consequently, such a law is unconstitutional. It is as void as a goal in a football match that was scored from an offside position. Given the penchant for  parliamentarians to please you Your Excellency, it is not surprising that they went ultra vires in their zeal to mollycoddle you.

Although judgment in the contempt of court case went in favour of Malaba, his acquittal must not embolden him. It was a calm before the storm. As I see it, the likelihood of pending cases to rule that the law Your Excellency relied on was unconstitutional cannot be discounted.

It was with ruminations that the South African Foreign Relations minister pondered: “How can Zimbabwe be helped?”

She was earnestly concerned that the new dawn alluded to with pomp and circumstance at the inauguration of the said new dispensation was yet to beckon.

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