In the week that President Jacob Zuma announced his pick for the second highest judicial position in South Africa, his Zimbabwean counterparts made it clear they are determined to obtain the same powers of virtually unfettered choice for top judge, even if it means amending that country’s new constitution to get their way.
Zuma announced on Friday that he wanted to appoint Constitutional Court Judge Ray Zondo as Deputy Chief Justice. He will now ‘consult’ with the political parties about his choice, but he is not required to obtain consensus or even agreement about his choice. Zondo, whose elevation to the post is almost inevitable, replaces the recently retired, highly-respected Dikgang Moseneke, one of several judges in South African history denied the position of Chief Justice apparently because they did not share the political views of the then ruling party.
But while Zuma goes through the constitutionally-mandated consultation process to elevate Zondo, extraordinary machinations in Zimbabwe show that Robert Mugabe, with at least one of his likely successors, Vice-President Emmerson Mnangagwe, wants the same broad power as the South African President to choose the Chief Justice and Deputy Chief Justice, unrestricted by the JSC.
It is a particularly urgent quest in Zimbabwe given that Chief Justice Godfrey Chidyausiku retired at the end of February 2017 and his deputy, Luke Malaba, is now acting CJ until a formal appointment is made. That urgency has been seen over the last three months via a series of court cases and urgent interventions.
Zimbabwe’s new constitution, barely four years old, provides that a judicial service commission interviews candidates for all judicial posts. But in the case of the Chief Justice and the Deputy Chief Justice the JSC presents the President with a list of three candidates from which the President must make a choice. (There is provision for one ‘send-back’ in case no-one on the first list appeals to the President.)
Mnangagwe is a powerful figure in Zimbabwe’s legal and justice arena in addition to his position as Vice-President – and, in the view of many media, the heir apparent to Mugabe. Wielding the power resulting from this complex network of positions, he has been pushing for some time to amend the provision dealing with the appointment of Chief Justice and Deputy Chief Justice. He wants to follow South Africa’s example and empower the president of Zimbabwe to make an unfettered choice for the top judicial spots.
That amendment is still in its infant stages, with public meetings being called to discuss the proposal – some of these meetings, however, resulting in strong condemnation of the proposed scheme because it could undermine judicial independence.
Then, in December 2016, two days before the JSC was due to interview four candidates to replace Chidyausiku, a law student suspected to be a front for Mnangagwa, brought an urgent High Court application to stop the hearings, pending this possible amendment. Judge Charles Hungwe granted the order on Sunday 11 December and it seemed the interviews, scheduled for the next day, would have to be halted.
Key in the Hungwe decision was the role that this possible amendment should play. The court ruled that the existing system should be put on ice in deference to the planned amendment, something that may be sent to parliament for approval at some point in the future. The judgment speaks of the government’s ‘clear intention to canvass the public for a change in the law’ and that any change ‘so it would appear’ ... ‘may lead’ to an amendment.
In his written judgment handed down on 12 December, Hungwe criticised the JSC for wanting to go ahead with the interviews on the basis that ‘internal memos and draft Bills do not constitute part of the law’. He said this approach ‘reflects poorly’ on the JSC since it suggests ‘that even in the face of clear intention of the policy-makers, (the JSC) is bent on proceeding with a process which the applicant is challenging and which challenge appears to have caught the attention of the policy-maker.’
Under the leadership of the CJ, the JSC immediately noted an appeal against the Hungwe judgment. Since the effect of the decision was thus immediately suspended, the JSC sat as scheduled on 12 December. Only three candidates were interviewed. The fourth, said to be Mnangagwa’s pick, George Chiweshe, did not arrive. The other three candidates were interviewed and ranked by the JSC as required by law.
Then mid-January came another shock: speaking at the traditional opening of the court year just a few weeks before his retirement, the Chief Justice gave some background to the pressure he has been under – from apparently mysterious sources – to block the JSC from doing its work. He said at one stage he was informed that an ‘executive order’ had been issued to the effect that the JSC process (of interviewing candidates for the position of CJ) must stop. He had responded to this order, he said, by explaining to the government that the directive ‘could not be complied with, without breaking the constitution’ and that the JSC interviews would continue as planned. Local media then quoted him as saying: ‘I have since established that the President never issued the alleged executive order to stop the interviews.’ He did not speculate, however, about who might have done so in the President’s name.
Shortly after this the JSC’s appeal against the Hungwe order was heard by the Supreme Court. Though reasons are yet to be delivered, the three judges unanimously upheld the appeal, saying that the JSC was correct to go ahead with its hearings.
On 22 February, the same student who brought the initial case to Judge Hungwe applied to the Constitutional Court for an order against the Supreme Court judgment. Unlike an appeal, this application does not suspend the effect of the Supreme Court decision, and the JSC position still stands, along with its list of candidates.
And there the legal situation pauses for the moment, until the application is heard.
Among reasons given by Mnangagwa for wanting to change the constitution is an allegation that provisions for appointment were the work of the opposition party and should be redrafted to reflect the majority party’s position. Just as controversially, he is quoted as saying that the present system in the constitution was not suitable. This was because various ‘inappropriate people’ would sit on the panel to interview people being considered for the post of Chief Justice. In particular, he said he objected to the idea that the Chief Magistrate would be able to ‘question a judge’.
Many provisions in South Africa’s Constitution have won world praise for their humanity and far-sightedness, for the way they establish and support transparency, accountability and a balance between the arms of government. So it is deeply ironic – but hardly surprising – that that with all these to choose from, the man who is apparently Zimbabwe’s new leader-in-waiting only wants to copy this particular section.
The South African constitutional provision that he wants to clone clearly concentrates appointment-making power (in relation to the most senior judicial posts) within the virtually exclusive grasp of the executive. It is not uncontroversial even in South Africa, where Zuma and his appointments are regarded with increasing suspicion against the background of corruption and ‘state capture’ allegations. It is even more suspect at a time when a new discussion paper for the ruling party’s June policy conference appears to propose strong party influence to ensure judges appointed in the future make decisions that accord with ANC philosophy.