‘Judges should not play to political gallery’

‘Judges should not play to political gallery’

RETIRED High Court judge, Justice Moses Chinhengo, yesterday said judges should not play a political game, as this will result in the abuse of power.

Source: ‘Judges should not play to political gallery’ – NewsDay Zimbabwe February 10, 2017


Addressing a meeting in Bulawayo on the Constitution of Zimbabwe Amendment (number 1) Bill, which seeks to change the way top judges are appointed, Justice Chinhengo said: “If judges play the political game, laws can be abused and these things can happen, and I think the political game has been played.

“Unfortunately, the Executive commands a majority in Parliament, and they change things, and if judges do not play politics, it is highly unlikely that the Executive might interfere in their decisions,” he said.

Justice Chinhengo recommended that Zimbabwe should adopt the Indian system, where a Chief Justice (CJ) is automatically succeeded by his or her deputy.

“India has the most progressive method for appointment of the CJ, as its Constitution provides that the most senior judge of the Supreme Court becomes CJ, and in our case, Deputy Chief Justice (DCJ) Luke Malaba would have become CJ, but perhaps there is a bit of politics because junior judges are now contesting (Justice) Malaba,” he said.

The retired judge said as Zimbabwe was already in the process of amending section 180 of the Constitution, it was preferable to follow the Kenyan approach, where section 166 of their Constitution provides that the State President appoints the CJ and DCJ with the approval of the National Assembly.

“Our Constitution can be amended, but procedures of amendment must be strictly adhered to. If they follow procedures, no one can challenge them at a legal level. It is dangerous to give too much power to one person and so we must ensure as a nation that the appointment process must ensure integrity. I think we must provide that the CJ must be appointed by the President after approval of the National Assembly,” he said.

Justice Chinhengo said the current Constitution requires that CJ interviews be done by the Judicial Service Commission (JSC). He said now that the Executive wants to amend the Constitution to stipulate the President must appoint the CJ, he smelt a political hand behind it.

The meeting was organised by the Southern African Parliamentary Support Trust (SAPST), Centre for Public Engagement, Public Policy Research Institute and Christian Alliance of Zimbabwe.

Useni Sibanda, of Christian Alliance, said the Constitution was sacrosanct.

“It is like someone saying they are going to change verses in the Bible, and that is why people should take serious issues with amendment of the Constitution,” he said.

SAPST programme adviser, Phillip Muziri, said the Constitution of Zimbabwe Amendment (No 1) Bill does not require a referendum to amend it, but two-thirds of the total membership of the House will be required to pass it.

Bulawayo-based human rights lawyer, Matshobana Ncube, said Zimbabweans must not allow the Executive to subvert their right to have a say and amend the Constitution willynilly.

“There is no need for one branch of government (Executive) to say they will lead another branch (judiciary) in those amendments unless there are some hidden issues by those pushing for that amendment,” he said.

“The judiciary is supposed to be independent from any quarters, including the Executive, and this means the Executive should not be involved in the appointment of judges. The current process says it is the JSC that is to attend to that process, and what it means is that the person is selected for their competence and skills.”

Ncube said the danger of having a CJ appointed by the President was that the person was likely to owe their position to the President and would compromise judgments, especially those to do with elections.

Bulawayo residents also expressed reservations at letting the Executive amend the Constitution without their views, saying they needed to speak out without fear.