Supreme court sets aside high court interdict of JSC’s interviews

As judges grant Mtetwa’s bid to protect supremacy of the constitution

Beatrice Mtetwa

THE Supreme Court on Monday 13 February 2017 allowed an appeal filed by the Judicial Service Commission (JSC) contesting a High Court ruling granted last year interdicting the constitutional body from conducting interviews for the appointment of a new Chief Justice.

The JSC petitioned the Supreme Court in December 2016 after High Court Judge Justice Charles Hungwe on Monday 12 December 2016 barred the JSC from conducting interviews set for the same day, which interviews were set for the ostensible purpose of submitting names to President Robert Mugabe for his consideration in appointing a successor to Chief Justice Godfrey Chidyausiku, who retires at the end of February 2017.

The High Court Judge’s order came after Romeo Taombera Zibani, a University of Zimbabwe student filed an application at the High Court seeking to stop the JSC from conducting interviews to choose a new Chief Justice and arguing that the Constitution should be amended to allow the appointing authority unfettered powers to appoint persons to the post of Chief Justice.

In its appeal, the JSC which was represented by Addington Chinake of Kantor and Immerman Legal Practitioners argued that Justice Hungwe had erred and misdirected himself when he interdicted the constitutional body from conducting interviews for the selection of a new Chief Justice. The JSC argued that it had complied with the provisions of the Constitution particularly Section 180 which governs the appointment of judges to superior courts.

Zibani, who was represented by Advocate Sylvester Hashiti and instructed by Jonathan Samkange of Venturas and Samkange Legal Practitioners and cited as the first respondent, attempted to oppose the JSC appeal even though he had been barred from being heard by the court after failing to comply with court rules, as he had not filed his opposing papers.

Vice-President and Justice, Legal and Parliamentary Affairs Minister Emmerson Mnangagwa, who was represented by Ephraim Mukucha from the Attorney-General’s Office, opposed the JSC appeal.

But in a unanimous decision granted on Monday 13 February 2017, Supreme Court Judges of Appeal (JA) Ben Hlatshwayo, JA Bharat Patel and JA Vernanda Ziyambi upheld the JSC’s appeal against the High Court interdict which barred the constitutional body from conducting interviews to choose a new Chief Justice.

The Judges of Appeal who allowed the JSC appeal and set aside Justice Hungwe’s judgment said they would provide reasons for the judgment.

Earlier on, the Supreme Court had granted an order admitting Zimbabwe Lawyers for Human Rights (ZLHR) board chairperson Beatrice Mtetwa, who was represented by Advocate Tererai Mafukidze, as a friend of the court.

Mtetwa, who on Tuesday 31 January 2017 filed an application in the Supreme Court seeking to be admitted as a friend of the court (amicus curiae) in the JSC appeal argued that the application filed by Zibani had a severe impact on constitutional democracy as it threatens the supremacy of the Constitution.

The ZLHR board chairperson argued that she sought to intervene in the appeal so that constitutional provisions are not suspended at a whim and not render the Constitution a worthless document that does not give the people of Zimbabwe the many protections its makers envisaged.

Mtetwa also argued that the Constitution is the supreme law and it cannot therefore be suspended by a court of law granting an interdict on the basis of an amendment yet to be passed. She also submitted that under Section 2 (2) of the Constitution, the obligations imposed by the 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.”

Besides Mtetwa, the Supreme Court also admitted the Law Society of Zimbabwe, represented by Advocate Zvikomborero Chadambuka and Abammeli Bamalungelo Abantu-Network of Human Rights Lawyers (Abammeli) represented by Tafadzwa Mugabe of Nyakutombwa Mugabe Legal Counsel as friends of the court.

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