MDC-T leader Douglas Mwonzora, accused of aiding and abetting President Emmerson Mnangagwa’s power consolidation scheme, his one-party state project and the controversial plan to extend Chief Justice Luke Malaba’s term, has surprisingly come out guns blazing against the Zimbabwe Constitutional Amendment (No.2) Bill, arguing it may set a precedent for the President to amend the constitution to extend his term limit, among other ills.
He said the bill has the potential of making Supreme Court and Constitutional Court judges illegal, making the country a laughing stock.
Mwonzora and parliamentarians linked to him, save for Morgan Komichi, voted with Zanu PF to ensure that the Zimbabwe Constitutional Amendment (No.1) Bill sails through Senate.
Constitutional Amendment (No.2) Bill, among other things, seeks to allow the President to appoint the Chief Justice, Deputy Chief Justice and Judge President without subjecting them to the open selection process and public interviews.
This will allow Mnangagwa to retain Malaba at the helm of the judiciary after the approval of Constitutional Amendment (No.2) Bill, which is being debated in Senate.
The Bill allows Malaba, whose term by operation of law ends at midnight on 15 May when he turns 70, to serve beyond the age limit. Other judges can also benefit.
It also aides Mnangagwa’s power consolidation bid by allowing him to concentrate power in his hands while undermining other arms of the state, such as the judiciary and the legislature.
The Bill allows him to remove the running mate close, helping him contain Vice-President Constantino Chiwenga. It also seeks to permit the President to promote judges of the High Court and the Supreme Court to a higher court on the recommendation of the Judicial Service Commission, without the need for public interviews, thereby opening the door to promotions on the basis of political suitability and cronyism.
Mwonzora however said Constitutional Amendment (No.2) Bill may set a wrong precedent, to that extent of encouraging incumbents to extend their terms.
He said unconstitutional amendments such as the one proposed in the Bill, to allow the President to chose judges, was one of the reasons why Zimbabwe was under international isolation.
“I am sure the (Justice) minister (Ziyambi Ziyambi) agrees with me that it will be a sad day when all the judges of the Supreme Court; all the judges of the High Court are illegal. So, we want to make sure that the judges are not illegal. The amendment that has been introduced has a clause that makes the judges illegal,” Mwonzora said.
“First of all, section 328 of our constitution says, if there is a term limit but there is need to extend that term limit, that extension shall not benefit the person holding that office. The logic of that section was to dis-incentivise leaders who wanted to extend their terms. So, if you are a President who then uses his popularity to extend the term of office, the clause says you shall not benefit from that extension.
“If you have commissioners, for example, who have a limited term of office and you introduce an extension during their term, that extension does not benefit them. If you have judges now who have term limits and you introduce an extension during their tenure, that extension does not benefit them. What the Minister had done in the original Bill, is that he left that question open and, with due respect, he was correct. What the Minister subsequently did now was to introduce another sub-clause 4, which says notwithstanding section 238 (7), the provision of sub-sections 1,2,3 of this section shall apply to the continuation in office of the Chief Justice, Deputy Chief Justice, judges of the Constitutional Court and judges of the Supreme Court.
“What you are doing, honourable minister, is: you are extending a term limit and our law says when we are extending a term limit, the incumbent shall not benefit. So, this extension is unconstitutional. This extension is illegal.”
He said in essence the minister is amending clause 328 so that it does not apply to judges.
“Our constitution is very clear. When you are amending a clause which deals with human rights; when you are amending a clause which deals with land; when you are amending a clause which deals with term limits, you do not amend it in the manner that you amend other ordinary clauses. It goes for a referendum. That has not been done in respect of this clause. That is why you hear people say the amendment is unconstitutional,” Mwonzora argued.
“A constitutional amendment where the Constitution says I am amended this way; when it is a clause like this, I am amended via a referendum, we must follow that. I agree with you, honourable minister, the constitution can be amended but it says how it shall be amended. Each clause is amended in a particular way.”
Mwonzora also said the constitution makes it clear that when an amendment is made, a 90-day notice must be given to the people of Zimbabwe informing them what is being amended.
He however said the notice was just to the effect that there would be a new method of appointment of judges.
“As time went on, the minister then introduced without notifying the public, that we are protecting the current judges and these judges are going to benefit from extension of the time limit. To that end, this is a dangerous thing,” Mwonzora said.
“Lastly on that issue, Parliament is there to make laws for the just governance of Zimbabwe. We have a responsibility to keep within our own constitution. We have a responsibility of stopping potential danger.”
He argued this could set a dangerous precedent, which can be abused even by the President and other incumbents.
“Now what we have just done with this new introduction, I think I saw it on the order paper, that introduction is now introducing an extension of term limits that benefits the incumbent. So today it is judges. How do we know that tomorrow it is not about commissions whose terms are limited? How do we know the day after it is not the President whose term of office is limited by the constitution now that you have introduced in the constitution that you can suspend the operation of section 328 which says you shall not benefit from the extension?” he asked.
“When we did it, we were aware that those who run us, who govern us, interact. I am sure the President interacts with the Chief Justice during the course of their work, interacts with the Speaker, the President of the Senate and so on. So, what we wanted to avoid was you to use your interaction to extend each other’s terms and benefiting from that extension.
“…Our law says if we extend your term of office while you are in office, you do not benefit. What this new law is saying is that you in fact can benefit. Maybe the minister may not have seen it that way but it is a dangerous precedence…”.
He said if the Bill is passed because of the ruling party’s majority in parliament allowing judges continuing in the Supreme Court and ConCourt, they will be illegal judges.
“That makes Zimbabwe a laughing stock,” he said.
Mwonzora said interviews were important as it made judges accountable for past actions while allowing them to publicly show that they deserve promotions.
“We want our people to have trust in our systems, we want our people to have confidence in the judicial systems, we want our people to appreciate that they are being led by intelligent people and that is what interviews bring. We want our people to see that these people are knowledgeable and we are being tried by knowledgeable people. That is the purpose of the interview,” Mwonzora said.
“Now if you think that the Judicial Service Commission is not good enough, we can have a compromise, if I may suggest that the interviews be done by the committee on standing rules and orders.
“In the United States, maybe slightly different, but they are still subjected to debate by the Congress. I think, in some instances and by the Senate in others. We can still also copy that, but for judges to be taken to the Supreme Court on the whims of the President is over- concentration of power in the President. Do not think about the President that you have now. The constitutions are not made for the angels of today but for the devils of tomorrow.”
He also slammed the proposal to scrap the running mate clause.
“The first thing was that we wanted to vaccinate the nation against presidents who have a tendency of appointing useless vice-presidents because they do not want to be challenged. So, you have situations where a vice-president is just put there to fill a post. We wanted to make the vice-president an election issue. Here, it is not correct that the President does not choose his vice-president. This clause says the President chooses his vice and, if more than one, chooses two but he chooses not after elections but before the elections so that the nation knows that in his absence who takes over and he designates them first and second so that you do not have a problem when it comes to succession,” Mwonzora said.
“The other thing we wanted to get rid of, which the minister regrettably has reintroduced, is the lottery clause. When we have two vice-presidents, the vice-president who takes over in the event of the President leaving office is the vice-president who last acted. It is not known who it is, but it is also open to manipulation. I know that I want to resign and so on. I appoint the other vice-president whom I want to take over to act, well knowing that I am about to leave office. The introduction of the lottery clause introduces doubt in the country. There is uncertainty on who will take over. So that was the logic of the running mate.”
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