Chief Justice saga: No conflict of processes
THE departure of outgoing Chief Justice Godfrey Chidyausiku does not in any way create a constitutional crisis and as such there was no need for the Judicial Service Commission (JSC) to rush interviews for his successor, legal sources have said.
While the interviews of a new Chief Justice are a constitutional requirement, they were not urgent.
Chief Justice Chidyausiku — the sources said — should have simply notified the Executive of his impending retirement for it to start the processes of finding his successor or appoint a person who acts in his capacity.
In the same breadth, legal experts yesterday said the so-called conflict of processes (interviews of prospective new Chief Justice and the amendment of the constitution) is and was needless.
They argued that Chief Justice Chidyausiku only wanted to ensure he puts his own stamp on processes leading to the identification of his own successor.
According to the Constitution, if the Chief Justice leaves office, his deputy should take over in an acting capacity.
In the event that the office of the Deputy Chief Justice is also vacant, the most senior judge of the Constitutional Court should act as the Chief Justice.
Section 181 (1) reads, ‘‘If the office of Chief Justice is vacant or of if the Office holder is unable to perform the functions of the office, the deputy Chief Justice acts in his/her place.
“But if both offices are vacant, both office holders are unable to perform their functions, the next most senior judge of the Constitutional Court acts as Chief Justice.’’
There is no timeline that the acting Chief Justice must act for so many months as is the case with, for instance, the Vice President when he becomes Acting President in the event of the incapacitation or death of the President.
The sources said given that scenario, the interviews were not urgent.
“What that constitutional provision means is that there was no urgency to hold the interviews,” said the source.
“What the Chief Justice should just have done is to alert the Executive that he is retiring. Can you start the processes of finding my successor or of appointing a person who acts in my office?
“Equally, the executive did not have to issue orders to the Judicial Service Commission, whether to ask them to stop their interviews or to encourage them to have them because there was no pressure.
“Really, there was no pressure on either side to act. Chief Justice Chidyausiku should not give the impression that he would have breached the Constitution, he didn’t have to.
“The Executive would simply have appointed an acting person. So, while the interviews are a constitutional requirement, the timing of the process itself was not.
“On both sides, there was an unnecessary rush. If you read section 180, it does not give a timeline that President should have acted on the recommendations of the JSC by such and such a period. It doesn’t! It’s an openended matter.”
Another source said the President would have gotten the recommendations and ignored them if he wanted.
Government has since gazetted Constitutional Amendment No 1 of 2016 that seeks to empower the President to appoint the Chief Justice.
This was after a realisation 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.
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.