This is a continuation of a long-running series of popular articles by South African-based Zimbabwean lawyer Advocate Tererai Mafukidze on the history of the judiciary in Rhodesia and later Zimbabwe, focusing on the chief justices.
SOON after former Chief Justice Anthony Gubbay resigned in March 2001, the late former president Robert Mugabe immediately appointed Judge President Godfrey Chidyausiku the acting chief justice ahead of all Supreme Court judges.
On 1 July 2001, Mugabe substantively appointed Chidyausiku to the post of Chief Justice. In some way, the promotion of Chidyausiku would be comparable to Dumbutshena’s elevation from Judge President to Chief Justice.
The underlying motive and events that preceded their elevation would confound any comparison. Second, the promotion went over Justices Simbarashe Muchechetere and Wilson Sandura, both of whom were black and senior to Chidyausiku. In fact, they had greater appellate experience. Third, Chidyausiku had been number 12 on the Zanu PF party list in the 1980 general election.
With his elevation, Chidyausiku was in the minority on the Supreme Court bench. This presented a challenge in constituting the bench.
Unexpectedly, the government increased the number of Supreme Court judges from five to eight on the pretext that there was a greater workload arising from land cases.
The increase on the bench meant Chidyausiku could constitute the new judges in the majority of panels. One of the additional judges appointed was Justice Luke Malaba who was to later on replace Chidyausiku as Chief Justice.
One of the first things Chidyausiku did was to reverse the Commercial Farmers’ Union judgement on land that he had criticised before elevation. Sandura dissented.
Chidyausiku studied law at the then University of Rhodesia between 1968 and 1972. During the 1974 Rhodesian general election, Chidyausiku stood on the African Roll and won the Harari (Mbare) constituency. He stood down during the 1977 general elections.
After that he was a Zanu PF delegate at the Lancaster House negotiations to end the Rhodesian War in 1979. He was Deputy Minister of Local Government and Housing, and of Justice from 1980.
He was then promoted to be Attorney-General in 1982. Chidyausiku was later promoted to be a judge of the High Court. He was later appointed Judge President upon the elevation of Sandura to the Supreme Court.
He chaired the Constitutional Commission appointed by Mugabe in 1999 whose draft constitution was later rejected in the referendum owing to the public discontent with some of the provisions.
Chidyausiku was criticised heavily by some of the members of the commission for what they perceived to be his role in doing the bidding for the executive, particularly protecting Mugabe who became a target of legislating out of office and power by his internal rivals, led by the late Zanu PF maverick Eddison Zvobgo, and the then new opposition under the late Morgan Tsvangirai.
Nothing is more revealing of how he was perceived by the government as chief justice than the accolades paid to him on his death by Mugabe and then Vice-President and Minister of Justice Emmerson Mnangagwa, the current President.
Both stated that Chidyausiku had helped them in saving the land reform programme and that he had removed the shackles put by Gubbay reign.
He had supported land reform as chief justice and helped in that political agenda.
Mugabe stated that this is why he was a national hero who was to be buried at the Heroes Acre in Harare. Mugabe also said the decision to confer national hero status to Chidyausiku was not only a decision of the Zanu PF decision-making politburo, but also one supported by the country’s security forces.
“During the land reform era, white judges like Justice Gubbay were misfiring,” Mnangagwa said, suggesting Chidyausiku had to be brought to correct that. All these accolades in death mask the eventful end to Chidyausiku’s position as chief justice.
It was widely reported by the independent media – the Zimbabwe Independent mostly at the time – that there was jostling between Mnangagwa’s faction and the rival G40 led by Grace Mugabe over who would succeed Chidyausiku as chief justice.
The position of chief justice was naturally seen as strategic for the succession battles. As a result, in August 2016 Chidyausiku was sent on leave pending retirement before he could institute the judicial interviews to choose his successor.
He was due to retire on 28 February 2017. It was reported by the Zimbabwe Independent newspaper that the decision had been made by Mnangagwa without Mugabe’s knowledge. It was also reported that Mnangagwa wanted Judge President George Chiweshe to succeed Chidyausiku.
Chiweshe was recently promoted to be a Supreme Court judge amid fresh controversy reported in the media that he was removed from the High Court for political reasons following the recent judgement that Malaba had ceased to be chief justice on 15 May 2021. The case is still in the courts, while Malaba is still in office.
Meanwhile, the constitution had been amended in 2007 to create the position of Deputy Chief Justice and Mugabe had appointed Malaba to the position. It was said the G40 faction preferred Rita Makarau to succeed Chidyausiku.
The Independent further reported that a fortuitous meeting with Mugabe at a funeral resulted in Mugabe reversing Mnangagwa’s decision to send Chidyausiku on leave pending retirement.
Buoyed by this, Chidyausiku went on to start the Judicial Service Commission (JSC) process of selecting his successor.
This move, it was also reported by the Independent, was opposed by Mnangagwa and Cabinet Chief Secretary Misheck Sibanda who tried to stop the process.
It was also reported that when Chidyausiku was removed, Chiweshe remained as the de facto acting Chief Justice despite the fact that the constitution gave this acting role to Malaba.
In order to stop this selection process, an urgent application was launched by a law student named Romeo Zibani.
Zibani launched an urgent application in the High Court to interdict JSC interviews that had been set down for candidates wishing to succeed Chidyausiku.
It was granted by Justice Charles Hungwe on 12 December 2016.
The JSC immediately appealed against the decision. The Hungwe judgment granted an interim order in which he interdicted the JSC from “conducting interviews set for 12 December 2016 which interviews are for the ostensible purpose of submitting names to the President of the Republic of Zimbabwe for his consideration in appointing the Chief Justice of Zimbabwe.”
The legal effect of the interdict was to suspend a constitutional process on the basis of an amendment to the constitution that Mnangagwa stated would be made.
The interdict granted by Hungwe sought to stop a constitutional process on the basis of an alleged intention of the executive to amend the constitution and change the way certain judicial officers, including the chief justice, are to be appointed.
In the papers before the court, Zibani had in fact intimated that the judicial appointment process under the constitution be suspended in favour of a process done by retired judges.
He alleged that the involvement of Chidyausiku in the JSC’s process of recommending the next chief justice compromises the process as he was familiar with the nominees for the position of chief justice.
The constitution’s makers were certainly aware that the members of the JSC would be familiar with applicants for positions which required them to be interviewed through the section 180 process.
Further, the constitution deliberately departed from the appointment procedure for judges under the former constitution by ensuring that the new process is fair, open and transparent.
In addition, the constitution deliberately limited the number of the so-called “subordinates” of the chief justice.
Under section 189(1) of the constitution, only five out of the 13 members are judicial officers and could be said to be the chief Justice’s subordinates.
The rest of the members are the Attorney-General; the chairperson of the Civil Service Commission; three practising legal practitioners designated by the Law Society of Zimbabwe; a legal academic designated by the majority of teachers of law, in the absence of that association appointed by the President; a public accountant or auditor appointed effectively by his or her peers; a human resource expert appointed by the President.
These professionals are neither subordinates of the chief justice nor subject to his direction.
Further, contrary to the argument presented on behalf of the JSC in the High Court, once the JSC submits the list of recommended persons for appointment to the office of chief justice, the President has no power to sit on the recommendations pending whatever constitutional amendment may be mooted.
The President is required under section 110(2)(d) to “make appointments which the constitution…requires the President to make.” This is a serious constitutional obligation. Section 324 of the constitution provides that: “All constitutional obligations must be performed diligently and without delay.”
On 11 December 2016, a day before the interviews, Hungwe issued an interdict preventing the JSC from proceeding with scheduled public interviews for the post of chief justice. The interviews went ahead after the JSC filed an appeal to stop the interdict.
The four short-listed candidates were Malaba, Makarau, Chiweshe and Paddington Garwe. Chiweshe did not turn up for the interviews.
It was reported – again by the Independent – that the interview results had Malaba with 91%, while Makarau followed slightly behind him with 90% and Garwe had 52%.
The appeal against Hungwe’s order was heard by the Supreme Court and the interdict was quashed. Malaba was then appointed Chief Justice.
…To be continued
*About the writer: Advocate Tererai Mafukidze is a member of the Johannesburg Bar. He practises with Group One Sandown Chambers in Sandton, Johannesburg. His practice areas at the Bar are: general commercial law, competition law, human rights, administrative and constitutional law.