‘Mnan­gagwa off­side on judges’

The Herald (Zimbabwe) - - Front Page - Her­ald Re­porter

FIRED for­mer Vice Pres­i­dent Em­mer­son Mnan­gagwa vi­o­lated the Con­sti­tu­tion when he joined a Univer­sity of Zim­babwe law stu­dent’s fight for the sus­pen­sion of a law­ful process to se­lect the coun­try’s new Chief Jus­tice on the ba­sis of a mere pro­posed amend­ment to the supreme law of the coun­try, the Supreme Court has ruled. The Con­sti­tu­tion pro­vides for the se­lec­tion of a new Chief Jus­tice through pub­lic in­ter­views, but ex- VP Mnan­gagwa, in his ca­pac­ity as the then Min­is­ter of Jus­tice, Le­gal and Par­lia­men­tary Af­fairs, sup­ported Mr Romeo Zibani, who was seek­ing to bar the pub­lic in­ter­views.

FIRED for­mer Vice Pres­i­dent Em­mer­son Mnan­gagwa vi­o­lated the Con­sti­tu­tion when he joined a Univer­sity of Zim­babwe law stu­dent’s fight for the sus­pen­sion of a law­ful process to se­lect the coun­try’s new Chief Jus­tice on the ba­sis of a mere pro­posed amend­ment to the supreme law of the coun­try, the Supreme Court has ruled.

The Con­sti­tu­tion pro­vides for the se­lec­tion of a new Chief Jus­tice through pub­lic in­ter­views, but ex-VP Mnan­gagwa, in his ca­pac­ity as the then Min­is­ter of Jus­tice, Le­gal and Par­lia­men­tary Af­fairs, sup­ported Mr Romeo Zibani, who was seek­ing to bar the pub­lic in­ter­views.

Ex-VP Mnan­gagwa filed a draft mem­o­ran­dum to Cab­i­net in which he pro­posed a change in the law re­gard­ing the ap­point­ment of a Chief Jus­tice.

The ex­ec­u­tive draft mem­o­ran­dum led the High Court into grant­ing an in­ter­dict stop­ping the pub­lic in­ter­views.

How­ever, JSC noted an ap­peal and pro­ceeded with the in­ter­views that later re­sulted in the ap­point­ment of Chief Jus­tice Malaba as the new ju­di­ciary boss.

Early this year the Supreme Court al­lowed JSC’s ap­peal, but the rea­sons for the de­ci­sion were given in a de­tailed 21-page judg­ment availed last week.

In the judg­ment, Jus­tice Bharat Pa­tel said at­tempts by Mr Mnan­gagwa to stop a con­sti­tu­tional process on the ba­sis of a pro­posed amend­ment of the supreme law was un­law­ful.

“The third re­spon­dent’s con­duct in seek­ing to have the op­er­a­tion of a con­sti­tu­tional pro­vi­sion sus­pended on the ba­sis of a pro­posed con­sti­tu­tional amend­ment is ob­vi­ously in­con­sis­tent with his obli­ga­tions in terms of Sec­tion 2(2) of the Con­sti­tu­tion (Doc­trine of Supremacy of the Con­sti­tu­tion).

“For a court to grant the priv­i­lege that he seeks would be tan­ta­mount to con­don­ing a vi­o­la­tion of those obli­ga­tions, thereby pos­ing a se­ri­ous threat to the rule of law en­shrined in Sec­tion 3(1) (b) of the Con­sti­tu­tion,” reads the judg­ment.

Sec­tion 2(2) of the Con­sti­tu­tion reads:

“The obli­ga­tions im­posed by this Con­sti­tu­tion are bind­ing on ev­ery per­son, nat­u­ral or ju­ris­tic, in­clud­ing the State and all ex­ec­u­tive, leg­isla­tive and ju­di­cial in­sti­tu­tions and agen­cies of Gov­ern­ment at ev­ery level, and must be ful­filled by them.”

On ap­peal, the ex-VP’s lawyers ar­gued that the High Court was cor­rect in at­tach­ing value to the ev­i­dence from the ex­ec­u­tive on the pro­posed amend­ment of the Con­sti­tu­tion.

This, ac­cord­ing to the Supreme Court, was weird and amounted to an at­tack on con­sti­tu­tion­al­ism.

“With all due def­er­ence to the over­ar­ch­ing po­lit­i­cal role of the ex­ec­u­tive, this ar­gu­ment is not only star­tling, but patently out­landish in its dis­dain for the es­tab­lished norms of con­sti­tu­tion­al­ism.

“It pos­tu­lates the very an­tithe­sis of the rule of law,” the court ruled.

The court con­cluded that the Con­sti­tu­tion can­not be ab­ro­gated or sus­pended by in­tended ex­ec­u­tive ac­tion re­lat­ing to the prospec­tive amend­ment of its pro­vi­sions.

The court ex­pressed dis­plea­sure at the con­duct of Zibani and his lawyers.

Zibani, through his lawyers, wrote two let­ters to the Supreme Court in­ti­mat­ing that the ap­peal’s set­down was un­law­ful, pal­pa­bly tainted ir­reg­u­lar.

He sought the re­moval of the mat­ter from the roll.

“Their rea­sons for tak­ing that view was not only brusque and over­bear­ing, but also con­tu­me­lious to­wards the Reg­is­trar and, by nec­es­sary im­pli­ca­tion, con­temp­tu­ous of this court,” reads the judg­ment.

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