BY TINASHE KAIRIZA
LAST week’s move by the Zanu PF dominated Senate to adopt the controversial Constitution Amendment Bill(1) is a brazen attempt to consolidate President Emmerson Mnangagwa’s grip on power while emasculating judiciary independence.
The Bill, which has sparked fierce debate across the political and civic society divide, will give Mnangagwa unfettered powers to directly appoint the Chief Justice, Deputy Chief Justice and Judge President, seven years after Zimbabwe adopted a new constitution.
Prior to the amendment, which now awaits the President’s assent, judges were subjected to public interviews before nomination and appointment to the bench.
The MDC Alliance led by Nelson Chamisa, whose party has suffered severe setbacks characterised by the recalling of a number of its representatives by the MDC-T under Douglas Mwonzora has indicated that it will challenge the legality of the Bill. Ironically, MDC-T, which previously criticised the Bill, voted alongside Zanu PF Senators last week.
Chamisa’s impending court challenge will seek leverage from Section 147 of the Constitution which spells out that any motion lapses after the dissolution of Parliament as the reading of the Bill happened before dissolution of the Seventh Parliament in May 2018.
Even at that time, the Bill was criticised by former MDC Alliance legislators who argued that when the legislation sailed through parliament, it did not enjoy the backing of two thirds of the National Assembly as required by law.
Analysts said the Bill will benefit Mnangagwa who is angling to give Chief Justice Luke Malaba another lifeline after his tenure which is expiring next month.
Malaba, who handed down the Constitutional Court (Concourt) ruling affirming Mnangagwa’s victory against Chamisa following the disputed 2018 election is set to retire from the bench when he turns 70 on May 15, in line with the law.
But yet his tenure may be extended by another five years renewable annually if Mnangagwa’s political gymnastics via Constitution Amendment Bill (1) yield the desired results.
Malaba’s impartiality is put under scrutiny by Jonathan Moyo in his book Excelgate: How Zimbabwe’s 2018 Presidential Election Was Stolen who argues that the Chief Justice has always been in Mnangagwa’s pocket during the time Zanu PF was engulfed by internecine factional battles which pitted Mnangagwa and a faction which had coalesced around Robert Mugabe in a bid to take over power from the longtime ruler.
Wrote Moyo as he chronicled how Malaba is alleged to have dealt with Chamisa’s ConCourt challenge: ‘“While there, Malaba received a copy of Chamisa’s ConCourt application from a senior legal officer at the Judicial Service Commission as he was relaxing by the swimming pool at Pretoria Sheraton Hotel.
“After reading the application Malaba turned to the judicial officer and asked him, ‘Is that all? To which the officer replied ‘Yes Sir’. Malaba then shook his head and remarked, ‘Okay akula lutho lah (there is nothing here). By those words, Malaba meant there was no case and he was going to have Chamisa’s application dismissed, even before the case was heard on its merits.”
Even as Mnangagwa manoeuvres to push through the Constitution Amendment Bill, his administration has been lethargic in aligning the country’s laws to the Constitution, which he is now attempting to shred.
The net impact of the amendment Bill, if it sails through, is that it will concentrate excessive powers in the hands of the executive, while weakening the judiciary, which will now be serving at the pleasure of the appointing authority — the President.
Across the House of Assembly and Senate, Zanu PF has been the biggest beneficiary of various MDC Alliance representatives who were recalled by MDC-T in line with a court ruling.
Critics argue that the constitutional amendment Bill will consolidate Zanu PF’s authoritarian rule.
Constitutional law expert Lovemore Madhuku contends that spirited efforts by Zanu PF to push through the amendment, and concerted efforts by MDC Alliance to oppose the proposed changes exposed a tussle among “elites” to further their narrow interests without the involvement of citizens.
“The people of Zimbabwe must never be cheated to think that what is being amended is their constitution. What is being amended is a document of Zanu PF and MDC. Which is why those who are amending it on one side are Zanu PF and those who are opposing it vociferously are MDC. So what is bad about this country is that both the amendment and those opposing the amendment becomes a game of elites,” Madhuku said.
“The solution is going back to the drawing board and have a people’s constitution which will never be easily amended. Our problem is when political elites want to make the constitution their game because surely why would it be for Zanu PF to amend and for MDC to oppose. So you make the constitutional war a war for the elites.” However, Crisis Coalition in Zimbabwe director Evan Vava highlights that the Bill would entrench Mnangagwa’s firm grip on power while compromising the independence of the judiciary.
“In essence, the Bill erodes the previous constitutional provision to subject the process of appointments of the Chief Justice, Deputy Chief Justice and the Judge President to public scrutiny and interviews.
“The Bill is thus an attempt to consolidate authoritarian rule through judicial capture and therefore merely seeks to serve the interests of ruling party politicians at the expense of the will of the majority who voted for the constitution in 2013,” Vava said.