Government is amending the Constitution on the appointment of the Chief Justice after finding itself in an unenviable position in which senior members of the Judicial Service Commission (JSC) tasked with conducting the interviews ended up being the candidates.
Secretary for Justice, Legal and Parliamentary Affairs Mrs Virginia Mabhiza said in an interview last week that drafters of the supreme law, which came into effect in 2013, failed to recognise a situation whereby those expected to conduct the interviews would become aspirants.
This, she said, made the procedure for the interviewing of judges by the JSC inappropriate as junior members of the commission ended up being tasked with determining the suitability of their seniors to the post.
JSC members Deputy Chief Justice Luke Malaba and Judge President George Chiweshe and secretary Justice Rita Makarau forwarded their names as candidates for the post, which falls vacant next March.
Justice Paddington Garwe was the fourth candidate. Although he is not a JSC member, he is a senior member of the Judiciary.
Under normal circumstances, Justice Makarau, as JSC secretary, would have been responsible for administrative arrangements for the interviews, but she ended up surrendering the responsibility to her deputy.
It was felt that having juniors interviewing their seniors was a mission impossible. Mrs Mabhiza said the way forward was to suspend the process of appointing a successor to the Chief Justice pending an amendment to the Constitution to give the President the power to one.
Government gazetted the Constitutional Amendment Bill (Number 1) on Friday last week to effect the appointment of the Chief Justice by the President.
“Justification for an amendment to the Constitution is as follows – the drafters of the Constitution failed to specifically address the question of the appointment of the Chief Justice,” said Mrs Mabhiza.
“Aspiring judges are in terms of Section 180 subjected to a public interview by the JSC. The process of appointing a Chief Justice should not be the same as that of appointing other judges. This is because very senior members of the judiciary, including some who sit on the JSC as commissioners will inevitably be aspirants for the position.
“It is unrealistic to expect those remaining members to competently interview candidates who are their seniors and upon which their welfare and future prospects are dependent, the possible exclusion of a significant number of commissioners from the interviewing panel in line with the above would render the panel insufficiently constituted without a quorum.”
Mrs Mabhiza said it was noted that because some of the aspiring members of the position of Chief Justice were also members of the JSC, the capacity of the commission to conduct the interviews was now questionable.
It was further noted that no prejudice would be suffered by the judicial system as the deputy Chief Justice would act as Chief Justice for the period during which there would be no Chief Justice.
Mrs Mabhiza said that was why it was recommended that the President approves the suspension of the interviews for the new Chief Justice.
Vice President Emmerson Mnangagwa, who oversees the Justice, Legal and Parliamentary Affairs Ministry, was authorised to start a process of amending the Constitution “to provide for the appointment of a Chief Justice by the President after consulting the JSC”.
Given the process involved, it will take approximately up to the end of March next year to amend the Constitution.
The new Chief Justice will replace Chief Justice Godfrey Chidyausiku, who is to retire in February next year after attaining the mandatory retirement age of 70.
- The Herald