ZEC’s unconstitutionally appointed commissioner(s)

The Zimbabwe Electoral Commission Chairperson, Rita Makarau.

On the occasion, the current “Chairperson of ZEC”, Justice Rita Makarau, expressed her delight that ZEC was “once again a complete Commission”.

2 It is not a pleasure we are able to share, however, due to the continuing problematic composition of the Commission.

Most of the Commissioners who comprise the current incarnation of Zimbabwe’s Electoral Management Body were appointed in 2010, including then Chairperson, Justice Simpson Mtambanengwe. Justice Mtambanengwe was clearly not in the best of health at the time, and, moreover, continued with his duties as a judge of the Namibian High Court after his appointment. He was unable to provide the robust and hands on management that this vital Commission requires, and left most of the running of the body to the Deputy Chairperson, Joyce Kazembe, including relations with the media. Justice Mtambanengwe resigned in February 2013, with his departure attracting little comment.

When Justice Makarau was sworn in as his replacement, on 14th March, 2013, the country was absorbed by the constitution making process and thereafter the 31st July 2013 general elections. It thus went unnoticed that an unwise appointment had been substituted by an unconstitutional one. Justice Makarau was, and is, in terms of the Constitution ineligible to hold office as Chairperson. Her incumbency is unconstitutional and has been so from the start.

Since Justice Makarau was appointed before the advent of the new Constitution, the provisions of the previous Constitution applied to her eligibility to take office as the Chairperson of ZEC. At the time Justice Makarau was sworn in as a ZEC Commissioner, the Constitution specifically provided that no person could be appointed as a ZEC Commissioner if he or she was already a public officer, a provision repeated in the present Constitution.

3 Justice Makarua was a public officer when she was appointed. Her status as such arose from her prior appointment as Secretary of the Judicial Service Commission, a position she had held since 2010. A public officer was defined to mean “a person holding or acting in a paid office in the service of the State.”4 A Secretary of the Judicial Service Commission(JSC) clearly falls within this definition.

A second and even more obvious reason why Justice Makarau was ineligible to be appointed   Chairperson of ZEC, is that at the time of her appointment, no ZEC Commissioner could be a member and/or employee of a statutory body.

5 This provision is repeated in the current Constitution. Both Constitutions specifically include in the definition of “statutory body” “a Commission established by this Constitution”. 6 Since the Chairperson of ZEC, as Secretary of the Judicial Service Commission, is most certainly both an employee7 and a member8 of a Commission established by the Constitution and thus a statutory body, it is unconstitutional for her to hold both positions.

5 Section 100D(c) and now 240(c) of the Constitution.

6 Section 332 of the present Constitution. It is only defined as such for the purposes of section 41 in the previous constitution, but it is clear that the Constitution intended a statutory body to include a Commission for the purposes of section 100D(c).

7 Section 10(1) of the Judicial Service Act [Chapter 7:18].

8 Section 39(f) of the Judicial Service Act.

9 Section 238(1)(a) of the new Constitution.

10 An obvious conflict is apparent here, as the JSC may wish to retain the person acting as the Secretary to the body.

11 Chapter 7:18.

12 See Court Watch 3/2014 Veritas 17.02.14.

13 Together with the Commissions’ staff, activities and property – see section 10(2) of the Judicial Service Act.

14 Section 49(2)(b) of the Public Finance Management Act [Chapter 22:19].

15 Public Interviews for Top Judges The Herald 08.07.14

Before appointing the Chairperson of ZEC, the President was then, as now, required to consult with the JSC,9 the majority of whose members are judges who should thus have noted the need for Justice Makarau to resign from her position on the JSC before accepting appointment to ZEC and advised the President accordingly.10 Justice Makarau is also a Supreme Court judge who likewise ought to have been aware that she was ineligible to be a Commissioner of ZEC whilst still Secretary of the JSC.

This disqualificatory provision in the Constitution has a sound basis, as the holding of both positions may render the person conflicted or may undermine his or her independence.

Since the coming into force of the Judicial Service Act11 in June 2010, the Judicial Service Commission is no longer merely an advisory and consultative body. The Commission has the responsibility for the administration and supervision of the Judicial Service as a whole, which includes control of the funds appropriated by Parliament for the Judicial Service, court property and donated funds.

12 The task of the Secretary of the JSC is precisely to supervise and manage such funds13 and to prepare the Commission’s accounts, which should include reports of any fraud pertaining to the Commission’s funds.14The Secretary of the JSC administrative involvement in the appointment process for new judges is also very much in the public eye. 15

As the Chairperson of ZEC, Rita Makarau’s conduct of elections is, and has been, likely to be the subject of election petitions and Constitutional court applications. These court petitions and applications will be, and have been, adjudicated upon by the same judges who are ex officio and fellow members of the Judicial Service Commission whose finances Makarau manages.

This opens the door to a public perception of the possibility of “mutual back scratching” or worse. There is also the possibility of conflicts of interest with other judges. For example, a press report from 2014, noted that several newly appointed judges had requested that they be allocated farms, gratis, as part of their conditions of service and that it was the Secretary of the JSC who was tasked to facilitate this. 16

16 Judges Demand Farms Newsday 25.06.15.

17 Section 238(2) of the Constitution.

18 Section 238(1)(a).

19 This provision was not part of the previous Constitution.

20 Section 238(5) of the new Constitution.

21 See for example, section 91(2) in relation to the two term limit for presidents. However, the reference to “the Commission” should mean only the Commission established by the new Constitution.

The Constitution requires that the Chairperson of ZEC must be a judge, former judge or a person qualified for appointment as a judge.17 Matters are not helped by the fact that Justice Makarau qualifies for appointment by virtue of the first criterion, being a current sworn judge of the Supreme Court.

The two offices held simultaneously by Justice Makarau – that of Supreme Court judge and Secretary of the JSC – suggest the possibility of a cozy collegiality with judges who may be called upon to adjudicate the propriety of her actions as Chairperson of ZEC, rather than the salutary and fierce independence her membership of the country’s Electoral Management Body demands.

One wonders, for example, how these same judges will deal with the on-going case pertaining to the legality of ZEC’s registration of voters without an Act of Parliament providing for this or a constitutional challenge to Justice Makarau’s appointment as Chairperson of ZEC.

Constitutionality cannot be restored though the simple expedient of Justice Makarau’s resignation as Secretary of the JSC and continuation as Chairperson of ZEC. This would be insufficient, as her appointment to the latter position was invalid. She would thus need to be properly and lawfully appointed as Chairperson of ZEC. To do so would mean that the provisions of the new Constitution pertaining to the appointment of the Chairperson of ZEC must be followed.

The appointment is made by the President after consultation with the Judicial Service Commission and the Committee on Standing Rules and Orders,18 but this time there ought to be a check that Justice Makarau is not rendered ineligible for the post by any of the disqualificatory provisions set out in section 240 of the Constitution and meets the general requirements for a Commissioner.

And as ZEC is presently constituted, Justice Makarau remains ineligible for the post. Section 320(4) of the new Constitution requires that: Where a Commission has a chairperson and a deputy chairperson, they must be of different genders.19 The current Deputy Chairperson is a woman.

Thus before Justice Makarau may constitutionally take office as Chairperson of ZEC, she must resign as Secretary of the JSC, Joice Kazembe must resign as Deputy Chairperson of ZEC, and President Mugabe must appoint Justice Makarau to the post after due consultation with the JSC and Committee on Standing Rules and Orders.

Several questions also hang over the positions of two other Commissioners. The term of office for Commissioners is a renewable six-year period, but no person may be appointed to, or serve on the Commission after he or she has been a member for one or more periods, whether continuous or not, that amount to twelve years.20

Where the Constitution seeks to apply such a restriction only to those who have held office under the current Constitution, it specifically states as much.21 Thus the 12 years must include periods held before the advent of the new Constitution. Less certain is whether “the Commission” is

intended to refer to only the Zimbabwe Electoral Commission (ZEC) or also to its previous incarnation as the Electoral Supervisory Commission (ESC), which preceded it until 2005. However, the obvious intention is that no person should serve on an electoral management body for more than 12 years, regardless of the formal title of the body. Both Joyce Kazembe, the current Deputy Chairperson, and Theophilus Gambe were part of the ESC for the 2002 elections.22 They have thus both been in office for well over the stipulated 12 years, a period which expired after the Constitutional provision in this regard became effective.23 At the very least, their presence on the Commission requires clarification.

22 In February 2004, the Electoral Management Body’s functions were divided between the constitutionally established (section 61) ESC and a new Zimbabwe Electoral Commission, established by an ordinary Act of Parliament. The Electoral Supervisory Commission (ESC) was abolished by the Constitution of Zimbabwe Amendment (No. 17) Act 2005, and its functions transferred to the ZEC of the time and of which Kazembe and Gambe were Commissioners.

23 The Zimbabwe Electoral Commission Act [Chapter 2:12] previously provided that Commissioners held office for five years, but could not serve a third term (Paragraph 1(4) of the First Schedule). If service on the Electoral Supervisory Commission is included, both Gambe and Kazembe were appointed for third terms. At the time of their 2010 appointment the Constitution set their terms at six years, renewable once. The 12 year limitation did not apply.

ZEC is one of the “Independent Commissions Supporting Democracy”. As such one would expect the Commissioners to have scrupulous regard to the Constitution and laws of Zimbabwe – which they swear to obey when they take their oaths of office. Unhappily in the case of Justice Makarau, since she was ineligible to take the oath, the Constitution of Zimbabwe was breached in the very act of swearing to uphold it.