Fungi Kwaramba 1 April 2017
HARARE – President Robert Mugabe’s nephew Patrick Zhuwao has hailed the
appointment of Justice Luke Malaba from public interviews conducted to
fill the vacant post of Chief Justice, reflecting his uncle’s reduced
authority under a constitution adopted three years ago.
Under the old Constitution repealed in 2013, Mugabe had singular authority
to pick the head of the judiciary, but the new charter prescribes that
candidates must be interviewed by the Judicial Services Commission (JSC),
a panel of mostly senior judges and lawyers.
Mugabe then chose from three names submitted by the JSC.
Malaba, Constitutional Court (Con-Court) judge Paddington Garwe, JSC
secretary Rita Makarau and Judge President George Chiweshe were nominated
by the JSC to conduct the public interviews.
The Chief Justice-designate scored 92 percent in the interviews, while
Makarau garnered 90 percent and Justice Garwe came out third with 52
Malaba, 65, who has been acting chief justice since March 1, was appointed
substantive CJ by Mugabe with effect from March 27, according to the JSC.
A University of Zimbabwe law student had attempted to scuttle the
interviews after petitioning the High Court to halt the interviews,
arguing the process was not transparent since the candidates were
colleagues of, and known to, the interviewing panel.
The High Court initially ruled in favour of the student, Romeo Zibani, who
also wanted Mugabe alone to appoint the chief justice. Vice President
Emmerson Mnagagwa then filed an executive note revealing plans to amend
the constitution to give Mugabe that sole responsibility.
The JSC, which employs all judges and magistrates, appealed the decision
at the Supreme Court, automatically setting aside the High Court ruling.
The interviews then proceeded, culminating in the appointment of Malaba.
Zhuwao, speaking in his personal capacity and as a law student, said it
was illogical that his counterparts in Cabinet wanted to subvert the will
of the people as enshrined in the Constitution.
Parliament has initiated the amendments to the new Constitution, with
public hearings on the proposed changes underway.
“As somebody who was involved in the making of the Constitution and as a
law student, I believe the JSC did the correct thing to do as had been
confirmed by the Supreme Court.
“I am excited that His Excellency has appointed Malaba as the chief
justice. I am not in a position of expressing his competency, but he is a
product of a constitutional process and he deserves the job,” Zhuwao said.
Revealing stark differences that emanated in Cabinet, Zhuwao, who is also
the minister of Indigenisation, said when they registered their opposition
to the changes, they were told to wait for Parliament.
“In Cabinet, there were those who were against Amendment (No 1) and we
were told to go to Parliament and oppose it.
“Right now there is a public outreach programme and I am observing what
people are saying, and no one has been able to convince me that the
Constitution in its present state is inadequate.
“For starters, we have to acknowledge that the office of the President is
the highest in the land and it is determined by people, so what is wrong
with the JSC route to submit names to the president?
“If we allow the president to rule through the will of the people; why not
the Chief Justice?” Zhuwao asked sarcastically.
Mnangagwa had argued that there was an anomaly when juniors in the JSC
interview their seniors.
“Whatever people may say, it is the president who has appointed the chief
justice. I am failing to understand the logic of people
who were opposed to this process.
“The president had the final say and the JSC only acted as far as
recommending, so the concerns raised by those who are seeking to amend the
Constitution are illogical,” Zhuwao said.