Clawing Back the Gains of Popular Participation – The First Amendment to the Constitution of Zimbabwe (2013)

The first amendment to the 2013 Zimbabwean Constitution, empowering the President to appoint the Chief Justice, has undermined the compromise central to the consultative drafting process. Considering the Zimbabwean post-colonial tradition of legislative claw back of progressive constitutional provisions and judicial pronouncements, this raises questions on whether the drafters should have recognized unamendable provisions or at least entrenched the judicial appointment process – writes David T Hofisi.

Introduction

The current Constitution of Zimbabwe was gazetted as law on 22 May 2013. It was enacted after an extensive process of public consultations which lasted in excess of four years and was endorsed by referendum. One of the new provisions introduced concerned judicial appointments. The constitution required advertisements, public interviews and presidential appointment from a shortlist of successful nominees produced by the Judicial Service Commission. Thus, it significantly reduced executive influence over judicial appointments and to that extent enhanced judicial independence. That was significantly altered by the first amendment to the Constitution of Zimbabwe (2013), gazetted on 7 September 2017. The appointment of the three most senior judges, being the Chief Justice, Deputy Chief Justice and Judge President of the High Court, shall henceforth be done solely by the President of Zimbabwe after consultation with the Judicial Service Commission. This piece outlines the events leading to the enactment of the amendment and its legal and political implications.

Background

The late former Chief Justice Godfrey Chidyausiku reached the retirement age of 70 at the end of February 2017. The procedure for appointment of his successor was outlined in the now old Section 180 of the Constitution of Zimbabwe. A public interview process was to be conducted by the Judicial Service Commission, a constitutional commission chaired by the Chief Justice. A short list of three nominees was to be sent to the President. If the President was not satisfied with the short list, a further list of three qualified persons was to be submitted, whereupon the President was obligated to appoint one of the nominees to the position of Chief Justice.

The procedure of judicial appointment was the culmination of years of lobby and welcomed for its openness, transparency and significant reduction of executive influence. 

The novelty of these new provisions, and possibly the angst they might produce, drove the late Chief Justice to write to the Executive regarding these new procedures ahead of his retirement. He stated that he received no response and so the Judicial Service Commission invited nominations for the position of Chief Justice in October 2016 and set dates for the interviews. This was followed by a communication to the late Chief Justice informing him of an executive order to halt the interviews. The late Chief Justice insisted on proceeding with the interviews to avoid violation of the Constitution. He later established that no such executive order existed.

Soon thereafter, the late Chief Justice was to be pitted against the same constitution he sought to defend. A high court application was filed on an urgent basis five days before the scheduled date of the interviews. The application was brought by a law student, Mr Romeo Taombera Zibani. He argued that the selection process for the Chief Justice in the constitution was itself unconstitutional. The Deputy Chief Justice and the Judge President not only form part of the Judicial Service Commission, but were also among the preliminary nominees for appointment. The other nominees were Justice Rita Makarau, who is the Secretary of the Judicial Service Commission, and Justice Paddington Garwe, who reports to the Chief Justice as a Supreme Court Justice. Mr Zibani argued that this created a near incestuous relationship which could not allow for impartial selection and was thus contrary to the accountability and transparency provisions of the constitution. The Minister of Justice, Legal and Parliamentary Affairs, who is also one of Zimbabwe’s two vice presidents, did not oppose the application. Instead, he indicated an intention to amend the Constitution to allow the President to appoint the Chief Justice and other senior judges without the public interview process. A draft amendment to the Constitution and memorandum to cabinet were both attached to his response. The draft bill made it clear that it was meant for implementation in respect of the replacement of the late Chief Justice, and other subsequent Chief Justices. Sub-section 2 of the proposed new Section 180 stated that the new procedure was to apply to the appointment of the Chief Justice to fill the vacancy in existence on the date of commencement of the Act.

The appointment of the three most senior judges shall henceforth be done solely by the President of Zimbabwe without need for public advertisements and interviews.  

The High Court agreed that the selection process in the constitution, whilst lawful, was unconstitutional. Justice Charles Hungwe ruled that there could not be any slavish adherence to the constitution contrary to the clearly expressed desire of the executive to amend the relevant provisions. Thus the interviews were stopped. The decision was roundly condemned by academia and civil society. The Judicial Service Commission swiftly appealed the High Court order and thus suspended its operation, paving the way for the interviews to proceed. Three nominees were interviewed and the fourth nominee, Judge President George Chiweshe, did not attend the interviews.

The Supreme Court unanimously upheld the appeal filed by the Judicial Service Commission on 13 February 2017, finding that the Judicial Service Commission had acted lawfully and constitutionally. Mr Zibani then approached the Constitutional Court, arguing that the appointment of a retired judge to be part of the panel that presided over the Supreme Court appeal was unconstitutional. The Minister of Justice, Legal and Parliamentary Affairs raised an additional issue of whether the retired judge had taken an oath of office. Whilst that application remained pending, it was announced that former Deputy Chief Justice Luke Malaba, who had scored the highest in the interview process, had been appointed Chief Justice by the President.

The ruling ZANU PF party understood the views expressed by the public to be representative of the minority party in parliament.

The Ministry of Justice, Legal and Parliamentary Affairs pursued the process of amendment in spite of the appointment of a new Chief Justice. The hearings for public input were conducted, though in a few instances they were chaotic and violent. In spite of the negative feedback from participants, the amendment process was still pursued. The ruling ZANU PF party understood the views expressed by the public to be representative of the minority party in parliament, the Movement for Democratic Change. They stated that this would not preclude them from making use of their parliamentary majority to effect constitutional changes.  The bill passed both the lower and upper houses of parliament, but not without incident. Members of the opposition Movement for Democratic Change argued that the counting of votes in the lower house was flawed and did not allow for verification; whilst they insisted that the figure for a two thirds majority was not reached in the upper house. This is now the subject of a Constitutional Court challenge filed by opposition members of parliament. The bill itself was gazetted into law on 7 September 2017 with minor amendments.

The Content and Impact of the new Section 180 of the Constitution of Zimbabwe

In terms of Constitution of Zimbabwe (as amended), there shall no longer be public advertisements and interviews for the three senior positions of Chief Justice, Deputy Chief Justice and Judge President of the High Court. The public interview process which preceded the appointment of the current Chief Justice was the first and last of its kind. The President shall appoint these officers after consultation with the Judicial Service Commission. That is to say, the Judicial Service Commission will be given an opportunity to make initial recommendations or representations, but their views will not be binding and this process will no longer be open to the public. Its role is purely advisory and the President is within his powers to ignore their views. Whilst the upper house of parliament is to be informed if the President acts contrary to the views of the Judicial Service Commission, it has no powers to alter or set aside the President’s decision.

The amendment continues a post-colonial trend of the creation of an all-powerful presidency.

This is identical to Section 84 of the previous Constitution of Zimbabwe. That constitution had long been criticized for being legally opaque and contributing to the creation of a pliant judiciary. For this reason, local critiques and scholars welcomed the new procedure of judicial appointment for its openness, transparency and significant reduction of executive influence. It was the culmination of years of lobby and advocacy. Even though some members of civil society felt the new provision still left the President with too much discretion, it still proved too liberal for the ruling elites. The first amendment to the Constitution of Zimbabwe has restored what is, effectively, a presidential monopoly over appointment of the three most senior judges.

These three judicial positions are not mere titular. The Chief Justice is not only the head of the judiciary but presides over the Constitutional Court. He/she also selects judges to preside over Supreme Court cases. The administrative duties of the Chief Justice often mean it is the Deputy Chief Justice who consistently presides over Supreme Court matters. The Judge President is in charge of the High Court and periodically allocates cases to various judges. Thus all three officers have substantial influence over the operation of the most senior courts in Zimbabwe. It is now plausible that they will be selected solely on the whims of the executive. This continues a post-colonial trend of the creation of an all-powerful presidency and the Zimbabwean practice of using constitutional amendments to reduce the number of checks and balances surrounding executive action.

The 21st amendment has been a reverting to type for Zimbabwe’s ruling party as constitutional amendments are used to increase the powers of the presidency at the expense of other institutions.

Civil society, scholars and the press have pointed to the succession battles within President Mugabe’s ZANU PF party as the root cause of the saga over the appointment of a new Chief Justice. At 93 years, President Mugabe’s advanced age has meant efforts to find his replacement have become more visible and at times vicious. This amendment ensures that the courts are not beyond a measure of executive/party control even beyond the Mugabe presidency. To that extent, it is a check on the judiciary to weaken it institutionally and to ensure the prospects of such an outcome as the Kenyan Supreme Court presidential election petition ruling remain between slim and remote.

Conclusion

The Constitution of Zimbabwe (2013) is itself the 20th amendment of the previous Constitution, by which enumeration this is the 21st amendment of the Lancaster House Constitution of 1980. In spite of the extensive public outreach process and overwhelming affirmative vote in the respect of the 20th amendment, the 21st amendment has been a reverting to type for Zimbabwe’s ruling party as constitutional amendments are used to increase the powers of the presidency at the expense of other institutions. The Minister of Justice, Legal and Parliamentary Affairs has expressed a willingness to use the ruling party’s majority in parliament to effect further amendments. This may well be a re-birth of the same trend of using parliamentary amendments to weaken constitutional checks and balances.

Zimbabwean scholars have questioned why some provisions were not insulated from amendment and thus removing them from the whims of the political majority.

The constitutional history of the country means that such behavior is to be expected. This opens the door to inquiries over whether the constitution should have included unamendable provisions/principles and/or whether the provisions in respect of judicial appointment should have also been included as one of the entrenched provisions. People who worked with the opposition Movement for Democratic Change party in the constitutional drafting process have insisted that they wanted a more stringent selection process than the procedure in the old Section 180. They sought parliamentary approval of judicial nominees and a reappointment process for all judges. They argue that the old Section 180 was the compromise reached due to strong resistance from the representatives of the judges during the negotiation process.

There were no effective safeguards against a resumption of the Zimbabwean post-colonial tradition of legislative claw back of progressive constitutional provisions and judicial pronouncements.

There is no evidence that any of the parties to the negotiations wanted to entrench the judicial selection process. The Lancaster House Constitution of 1980, for instance, entrenched the reserved parliamentary seats for white legislators for seven years and the Bill of Rights for ten years. It required  a unanimous vote in the House of Assembly to amend either provision. Legislators are not similarly empowered in the Constitution of Zimbabwe (2013). Entrenchment has taken the form of a referendum following two thirds affirmative votes in each house of parliament. This applies to the Declaration of Rights (Chapter 4), Agricultural Land (Chapter 16) and the provisions on amendment of the Constitution (Section 328). Individual legislators cannot veto any proposed constitutional amendment in any period following the constitution’s enactment. Zimbabwean scholars have questioned why some provisions were not insulated from amendment and thus removing them from the whims of the political majority. It has been suggested that the main opposition party either placed (undue) faith in its ability to become the next ruling party, or had misplaced faith in the bona fides of ZANU PF. The observation by some of the framers of the constitution that enactment has not led to automatic implementation suggests an expectation that the establishment of new constitutional text would necessarily lead to a new constitutional order. The result is a constitutional framework without any practical and effective safeguards against a resumption of the Zimbabwean post-colonial tradition of legislative claw back of progressive constitutional provisions and judicial pronouncements.

David T Hofisi is a Senior Projects Lawyer with Zimbabwe Lawyers for Human Rights and a doctoral candidate at the University of Wisconsin-Madison.