BY DR MASIMBA MAVAZA
HARARE – The National Assembly passed the Constitutional Amendment Bill No. 2 on Tuesday, giving President Emmerson Mnangagwa new sweeping powers to appoint judges without public scrutiny and extend their term of office after reaching retirement age. This Bill will put to rest the anxiety which was sweeping through the legal fraternity as Chief Justice Malaba was reaching retirement age.
The vote, carried by a 191 to 22 majority, came at a time Chief Justice Malaba was to retire automatically at the end of the month. The stages left to make it into law is few days away and it will be in time for the Chief Justice to continue in his current position.
There were, however, signs of a growing rebellion in the Mwonzora camp after four aligned MPs, including deputy leader Thokozani Khupe, Nomvula Mguni, Phelela Masuku, and Paurina Mpariwa joined Nelson Chamisa’s MDC Alliance lawmakers and voted against the amendment which will also kill the “running mate” clause, and allow President Mnangagwa to appoint his deputies, instead of elected vice presidents.
The Chamisa MPs who rejected the alterations include Livingstone Chimina, Patrick Dube, Joel Gabuza, Innocent Gonese, Shapespear Hamauswa, Norman Allan Markham, Phelela Masuku, Daniel Molokela, Edwin Mushoriwa, Stella Ndlovu, Jacob Nyokanhete, Tose Wesley Sansole, Trevor Saruwaka, Job Sikhala, Godfrey Sithole, Jane Nicola Watson, Jasmine Toffa, Illos Nyoni, and David Tekeshe.
The Bill now returns to the Senate, where Morgen Komichi, the chairman of MDC-T, previously voted against it – before heading to Mnangagwa’s desk for his assent. It will be dramatic and anxiety filled moments as the world sees how Komichi will vote in senate.
The changes will remove the the cumbersome way judges were being appointed. This will give judges dignity as they will not have to explain their skills to the public.
The amended charter will allow Mnangagwa, with non-binding suggestions from the Judicial Service Commission (JSC), to elevate sitting judges to higher courts without subjecting them to public interviews which was humiliating and disappointing.
It also gives him the power to extend by up to 5 years contracts of judges serving in the Constitutional Court and the Supreme Court who have reached the retirement age of 70 “subject to a favourable medical report.”
Tendai Biti, MDC Alliance vice president, took aim at “Zanu PF and MDC-T ” for passing a “viciously mutilated Constitutional Amendment No. 2 that seeks to extend Chief Justice Luke Malaba’s term.” But Biti’s outburst are not surprising as Biti has always been attacking the judiciary with impunity.
Mabala’s retirement clock strikes on May 15 when he turns 70, and it is widely expected that, in line with the adjustments, president Mnangagwa will cheerfully renew his term.
Biti said the Constitution, approved overwhelmingly by Zimbabweans across the political divide in a 2013 referendum, was “sacrosanct and should not be a tool for authoritarian consolidation.”
He vowed: “We will fight this abomination. Emmerson’s disrespect of the constitution and total violation of decency and the rule of law sets him apart as the greatest existential threat to the Zimbabwe State. In three years, Zimbabwe has descended into a little outpost of fascism and state failure, thanks to politics of greed, violence, and idiocy.”
Khupe’s refusal to join colleagues and vote with Zanu PF despite a whipping system puts her on a renewed collision course with her boss after a bitter fallout last December when she lost the MDC-T presidency to Mwonzora in a congress marred by violence and ballot fraud.
A spokesman said Khupe voted “against the amendment because, in her view, it is a violation of the letter and spirit of the Constitution.”
“What’s wrong about a judge who is going to preside over our maters to be publicly interviewed for all to be convinced that indeed this person is fit to hold the position that they seek? asked MDC-T Senator Khaliphani Phugeni, a Khupe ally.
He said erasing the public interviews process for judges and putting the responsibility solely in the hands of Mnangagwa did not augur well for the independence of the judiciary.
“You look at the devolution deal, it’s completely watered down. That’s not the devolution that our people voted for. So Dr. Khupe said she could not be part of that,” Phugeni told online tabloid Ziive.
However many lawyers who spoke to Zim24/7 have applauded the amendment. “ it has restored back sanity in the judiciary. Many deserving judges where being left out because the system gave JSC too much control over judges.” Said one senior Harare lawyer.
Many countries including England and United States do not put judges under public humiliation thorough a public interview.
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