BY MIRIAM MANGWAYA
HUMAN rights defenders have accused President Emmerson Mnangagwa of deliberately delaying the appointment of Constitutional Court (ConCourt) judges as he awaits the enactment of the Constitutional Amendment Act, which gives him power to handpick his preferred candidates.
The Judicial Service Commission (JSC) conducted public interviews to fill the vacancies for ConCourt for judges on September 28, 2020, where 12 shortlisted candidates, including Justices Chinembiri Bhunu and Paddington Garwe, were interviewed.
The need for ConCourt judges arose following the split of Supreme Court and Constitutional Court benches in May last year in compliance with the Constitution, which stipulates the separation of personnel manning the two courts.
However, analysts have accused Mnangagwa of failing to abide by the Constitution to ensure proper functionality of the ConCourt more than six months after the interviews for the judges were conducted.
Zimbabwe Human Rights NGO Forum executive director Musa Kika said it was a constitutional anomaly that the country remained without substantive judges of the highest court.
“The delay in appointing ConCourt judges is deliberate and calculated. If the Constitution of Zimbabwe Amendment No 2 Bill is passed into law, it means the President would then have free rein to pick candidates of his liking, and not be bound by what the Judicial Service Commission submits to him,” he said.
“The President wants to be assured that any electoral or constitutional compliance disputes that go for judicial determination turn in his favour.”
Presidential spokesperson George Charamba dismissed the allegations, saying that even if the Bill was to be signed into law, the President would not be the sole appointer of the judges, but would act on recommendations from the JSC.
He said: “Subjecting the judges to interviews is demeaning. If the Bill is adopted, then it will be the official law, but if it delays, the President will appoint the judges based on the interviews conducted, because such crucial posts cannot be left vacant for long.”
Human Rights Watch Southern Africa director Dewa Mavhinga said the President was violating section 180 of the Constitution, which stipulates that the JSC should present a list of judge nominees to him, which he must make appointments from, or ask the JSC to submit another list if he thinks they are not qualified.
“Unfortunately, there is a precedent of the President not strictly following the law when it comes to key appointments including that of the current Prosecutor-General (Kumbirai Hodzi), who was not the best candidate on the list presented to the President by the JSC,” Mavhinga said.
“Waiting for constitutional amendments to be adopted before retrospectively implementing them with regards to interviews conducted last year would likely be unconstitutional and can be challenged in court.”
Law expert Alex Magaisa also said it was likely that Mnangagwa was eager to appoint judges of his own choice, hence delaying appointing the interviewed judges.
“He is waiting for Constitutional Amendment No 2 which will give him power to appoint judges of his own choice, without any public interviews. Kenya and South Africa have most recently conducted judicial interviews. They will appoint judges before our man does,” he said.
“The JSC is mute while the institution it is supposed to defend is being dragged by a President who has no regard for the Constitution that he is sworn to uphold. If it stands in the way, he just pretends it doesn’t exist. Then again, he came to power through its violation.”