Blind Spots in Zimbabwe’s Succession Procedures

3 Sep

Blind Spots in Zimbabwe’s Succession Procedures

Alex T. Magaisa

In the last part, we said that the procedure under section 14(5) of the Sixth Schedule of the Constitution for selecting a successor to the President in the event of his resignation, incapacitation or death is that the political party which he represented at his election has the power to select and nominate a successor. We said that this procedure could cause some difficulties with the potential for threatening national stability if it was not handled carefully. Here, we explain the blind spots and weaknesses inherent in this procedure which Zimbabwe must be prepared for to avoid trouble.

At first sight, the procedure appears to be quite simple and straightforward: the party represented by the departing President has the power to nominate a successor. Everything being normal and equal, this should probably be simple and straightforward. However, as this article demonstrates, the reality is very different.

The constitutional clause on succession is based on an assumption that the political party of the departing President either has a known successor, whom it nominates upon the occurrence of any of the three circumstances leading to a vacancy or it has a clear and certain procedure for making such a nomination. At present, however, the identity of a successor in Zanu PF is by no means certain nor is the procedure for selecting and nominating such a successor.

To our knowledge, none of the political party constitutions have yet been amended to conform to the new national constitution on the succession procedure in the event of the death, incapacitation or resignation of the President. What they do have, of course are procedures for electing a leader and in the case of the two major political parties, Zanu PF and the MDC-T, the leader is elected by Congress, which is the main decision-making body of the respective political parties.

It is for this reason that the parties’ two respective congresses this year are important as they offer an opportunity for the membership to elect their leaders. In the case of Zanu PF, which is important for purposes of this piece on national succession because it is the ruling party, there has never really been an election since independence because its leader has retained his position via acclamation. To our knowledge, Mugabe has never been contested for the leadership since he took over during the liberation war. What is not clear is the procedure that Zanu PF will use to nominate a successor should resignation, incapacitation or death of the leader occur before the expiry of his term.

Will it be the Zanu PF Parliamentary Party, i.e. the elected Members of Parliament (National Assembly and Senate) that will convene to form an electoral college to select a nominee? Or will it be the members of the Zanu PF politburo who will convene an electoral college to find a nominee? Alternatively, will it be the members of the Zanu PF Central Committee, which is the party’s highest decision making body outside Congress, who will convene an electoral college to find a nominee? Or will Zanu PF convene an extraordinary Congress of the people at which members will elect a new leader who will automatically become its nominee to fill the presidency and the remainder of the term?

All these are possibilities and nothing is certain. Indeed, the problem that the nation could face is a serious squabble within Zanu PF about the procedure for selecting a nominee. This could happen because in light of the factional battles which have now become so open, one procedure might be regarded as giving an advantage to one faction over others. Therefore, different factions might prefer different procedures for selecting a nominee. This could be avoided if the party sufficiently prepares for this circumstance by stating clearly in its constitution or rules, the procedure for selecting a nominee to choose a successor in the event of any of these eventualities.

Some blind spots lie in the actual procedure itself. In terms of section 14(5) of the Sixth Schedule the relevant political party which has the right to nominate a successor, in this case Zanu PF, must notify the Speaker of the nominee’s name within ninety (90) days after the vacancy has occurred. This means the party would have the equivalent of three months to select a nominee. One could argue that an extraordinary Congress to elect the President could be called and convened within that period. This could result in a serious internal election on a scale never seen before in Zimbabwe. The contestation would be at a level never experienced in the history of elections in Zimbabwe.

Now, it is not beyond the realms of possibility that an aggrieved party might decide to contest the process and outcome of such an election on grounds of irregularities. Already, we have seen that Zanu PF is grappling with issues around internal elections in recent months, starting with the provincial leadership elections last year and more recently the Youth League and Women’s League leadership elections. None of the complainants has so far taken legal action to contest the results of those elections but when the stakes are high in a presidential election, one cannot discount the possibility of a legal contest before a court of law.

While the leaders themselves might be wary of taking legal action against their party or counterparts, there is always the possibility of taking a “Jealousy Mawarire-type” of legal action. This is where an ordinary individual, seemingly out of nowhere, takes legal action purporting a breach of his or her constitutional and legal rights and seeking redress from a court of law. Such a litigant would appear ordinary but in reality he would have been sponsored by a political heavyweight to take such legal action. He would be no more than an instrument of the politicians. This is in reference to application that was launched by one Jealousy Mawarire in 2013, for purposes of forcing the July 31 elections before the completion of reforms. It was done under the name of Jealousy Mawarire but in reality it was sponsored by Zanu PF, which was keen to force an election before reforms. The Supreme Court, which bought the plan, inaccurately read and interpreted the Constitution to suit this demand. The point here is that there is no reason why a Jealousy Mawarire, an individual sponsored by political heavyweights in Zanu PF, can spring some type of legal action and challenge the succession process alleging for example that his constitutional rights and freedoms are being violated or threatened.

Another blind spot is when the party submits its nominee to the Speaker and the oath is taken before the Chief Justice. The law is that the oath is taken within forty-eight hours after the Speaker is notified of the nominee’s name. This, of course, works where the party is undivided and there is no dispute over the nominee. Let us look at the worst case scenario, where a name is submitted to the Speaker but there is a dispute and a second name is also submitted by members of the same party. In that case, the Speaker will be faced with a situation that he cannot resolve on his own. The Constitution does not have a specific provision for handling such a scenario. Presumably, he would have to defer to the courts on such a matter.

Some might think this is far-fetched but an experience earlier this year suggests that the possibility of such a scenario cannot be overlooked. It happened in the dispute within the MDC-T, when the party wrote to the Speaker advising him of their intention to recall MPs whom it argued were no longer its members. A new group, calling themselves the MDC Renewal Team had written a pre-emptive letter to the Speaker seeking protection for MPs who were elected under the MDC-T ticket, arguing that they were the legitimate voice of the party. Faced with this situation, the Speaker said he was in no position to make a decision and referred the parties to court for a resolution. The point here is that the Speaker might himself with two rival nominations for a successor to Mugabe, in which case he would have to refer the matter to the courts.

The implication of all this is that the judiciary might end up playing an integral role in the succession process. The courts may be called upon to decide on various issues in this process revolving around the credibility and validity of the selection and nomination of a successor. This puts the judiciary at the centre of succession politics. The opposition has for a long time complained about the bias and lack of independence of the judiciary, which they believe is more inclined towards the executive and Zanu PF. The judiciary had a central role in the July 31 elections in 2013 – both before and after the elections. It is probable, based on this analysis, that the judiciary will have a similarly critical role in the selection of a successor in Zanu PF. The question is which of the factions has the judiciary’s favour and sympathies. Of course, the judiciary will protest that it is above politics and unconcerned with the internal political dynamics of political parties. But the reality may be otherwise and whichever of the factions has control of the judiciary will have a greater advantage in this process, which may well be played out and decided in the courts of law. The central role of the judiciary might explain the unusual burglary this week and theft of a computer from the office of the Chief Justice. It is no ordinary theft. The buildings that house the Chief Justice’s chambers are in a high security zone. It is impossible that a mere thief could have sneaked in and got away a computer and a television set without being noticed.

In all this, one must remember that there will be an Acting President in that 3 month period within which a successor is supposed to be chosen. And according to the constitution, the Vice President assumes office as Acting President when the sitting President resigns, dies or is otherwise incapacitated. This places Joice Mujuru in the driving seat during the succession process should any of the three circumstances occur.

Overall, the point that emerges from all this is that there are many blind spots in the succession procedure provided for in the constitution. It works on the assumption that everything works normally and does not cover for potential problems. It does not specify the actual procedure to be followed by the political party in selecting a nominee and this vagueness creates potential problems. The political party in power, in this case Zanu PF needs to prepare for this eventuality and ensure there is a clear and certain procedure and that disputes are minimised otherwise they compromise national stability and security.

Succession under the Constitution of Zimbabwe

2 Sep

Succession under the Constitution of Zimbabwe (Part I)

Alex T. Magaisa

This year, I set out to write an account of the new Constitution of Zimbabwe – how it was made, the negotiating history of the clauses and the rationale behind them. It is by no means an authoritative text of the meaning of the constitutional clauses but hopefully, it gives some background to the thinking behind the clauses. This is work in progress and I am presently revising the first draft. However, given the pertinent issue of succession that is presently in vogue in the context of our politics, I thought readers might benefit from an extract on that particular issue. I stress that these are my views as gathered from my participation in the process and they do not represent the views of any organisation or institution or individual with which or whom I am associated or connected.

Running Mates

Section 92 of the new Constitution introduces a new system of voting for the President and the Vice Presidents. It is a system modelled along the lines of the US Presidential election procedure where a Presidential candidate nominates a running mate whom, upon his election automatically becomes his or her Vice President. This new procedure was introduced at the Management Committee level of the negotiations after the matter of whether or not to have an Office of the Prime Minister had been “parked” by the Copac co-Chairmen Committee and referred to that level of the negotiating process for resolution.
Our understanding was that the proposition of the running mate system had actually been suggested by Zanu PF members at the Management Committee. This was very interesting because it raised the prospect of factional politics within Zanu PF. The effect of the running mates system in elections is that it forces the Presidential candidate to pick two persons from his own party to run with him, thereby in the context of succession politics, revealing his favoured lieutenants and his choice for succession. Under this system, the running mates are not be of equal status – there is a first and second running mate, meaning that in the event of success, there would be a first and second Vice President, ranked in that order. This is important for succession. It means that if the President leaves office, he is succeeded by the first Vice President. Thus this system easily demonstrates the pecking order within a political party. It allows for a simpler and easier system of succession.
The implication for succession politics for all the negotiating parties but more particularly for Zanu PF, was that this system would force President Mugabe to confront the succession question way before the election and this was something that he had long avoided. If this system had been used, he would have had to show his hand on whom he favoured to succeed him given his advanced age and the real possibility that someone would have to take over before the expiry of his term of office, if he won the election. Other leaders and prospective candidates had the same problem but it was more evident within Zanu PF.

In the MDC-T also, people started talking. They were asking questions as to who would be the running mates in the event of an election. Unlike Zanu PF, there was only one Vice President – Thokozani Khupe. But already there seemed to be whispers that it was not obvious that the VP would be the running mate. Given the implications of the issue on succession, it was no longer obvious that VP Thoko Khupe would be the first running mate and it seemed to me that other ambitious cadres were also angling for a more advantageous position. Yet it seemed inconceivable that Tsvangirai would overlook his loyal Vice President and the ambitious cadres were aware of this. And even if VP Khupe was secure as a running mate, the question remained as to who would be the other running mate? Already, individuals were starting to position themselves. I was aware of rumours linking several senior leaders to interest in the position given the succession angle that it presented. None of them however ever publicly stated their ambitions. Overall, it was clear that the Presidential candidates in the next election would have had to confront a very hard choice between their lieutenants but it would have given a clear indication on the succession question within their political parties.

The politicians, especially in Zanu PF, were not comfortable with this situation as it put President Mugabe on the spot and it had the potential to effectively thwart the dreams of those who had ambitions to lead the country after Mugabe. A battle ensued over the running mates issue, with some arguing that it was unnecessary and divisive and others arguing for its retention as it ensured that Vice Presidents were also elected by popular mandate and it allowed for a more certain and smoother succession system. Where a Vice President is appointed by the President it is harder to argue for his or her succession in the event of vacancy in the Presidency as they would not enjoy a popular mandate. I personally preferred the retention of the running mates clause along with the clear succession clauses.

In the end, a compromise was struck and it left the nation with a poorer and more uncertain succession system. The matter was eventually resolved by retaining the running mates clause in the main body of the constitution but incredibly, postponing its application for a period of ten years. This suspension was done by inserting Section 14 of the Sixth Schedule, which relieves presidential candidates from having to nominate running mates in the first election and any other election within ten years after that election. Instead, the elected President would be allowed to appoint up to two Vice Presidents just like under the previous constitution. The effect of this was that the running mates issue became irrelevant for purposes of the first election. Neither Mugabe nor Tsvangirai or any other candidate for that matter, were forced by the new constitution to deal decisively with the succession issue in their parties. This is why in the July 31 elections, the issue of running mates did not feature, even though it is there in the new constitution. It will not apply until at least the 2023 elections.

Succession

Under the running mates system of presidential election, Section 101 provides that if the President dies, resigns or is removed from office then the first VP takes over until the expiry of that term of office. The second VP becomes the first VP and the new President must appoint a new person as the second VP. However, like the running mates clause, these provisions were also suspended for the first ten years.

Instead, Section 14 (4)(b) of the Sixth Schedule provides that if the President dies, resigns or is removed from office, the vacancy is filled by a nominee of the political party which was represented by the President when he stood for election. This means that if any of the three possible scenarios happened during the current term, Zanu PF would nominate a person to take over and complete the Presidential term. The critical point to note here is that it is not automatic that Vice President Joyce Mujuru would take over as President which would have been the case had Section 101 been applicable. Instead, it is up to Zanu PF to sit down as a party and select a candidate using their own processes and this person is then nominated to become the President for the remainder of the current term of office.

The succession procedure is the same that was used during the GPA period in terms of which the party that held a particular position in Government was entitled to nominate a replacement. This was necessitated by the politics of the time when each of the parties wanted to ensure the protection of its political space within the GNU. The MDCs in particular, feared that if that protection was not available, Zanu PF would encroach into their spaces, replace an office holder with one of their own and thereby reduce their power and upset the balance of power. They all wanted to retain the balance of power as initially constructed at the inception of the GPA. While understandable within the context of a coalition agreement, it is difficult to understand why it was necessary to continue with this type of provision in an environment where a single party would be in control of Government. The VP would be from the same party as the President and section 101 could easily have been used to fill a vacancy if it arose. Why was this simpler and clearer system suspended for ten years?

It seems to me that succession politics in the different political parties but especially in Zanu PF, had a hand in this as well. If persons with prospects of becoming VP in their parties and therefore the nation, like Joice Mujuru in Zanu PF or Thokozani Khupe in the MDC, had more influence in the constitution-making process, they would no doubt have chosen to stick with Section 101. However, those who were negotiating and had influence in the process probably did not share the same interest. Their preference was to leave it to the mercy of party electoral politics as opposed to the guaranteed certainty of section 101 where the VP automatically ascends to the Presidency in the event of a vacancy.

Much less spoken about, but certainly something that was rumoured was the gender dimensions of this debate. It seemed to me that there was a view of discomfort among the male politicians over the real possibility of having one of those two women ascending to the throne. In both parties, it was women who held the vantage position where section 101 was used as both Joice Mujuru and Thokozani Khupe were likely to be the first Vice Presidents and therefore the first in line to succeed in the event of a vacancy. There was only one woman, Priscilla Misihairabwi-Mushonga in the entire Management Committee and not a single woman among the co-Chairmen and their experts (one of whom was myself). I think the imbalance was quite obvious. They do not say it openly but it is my observation that notwithstanding their public posturing on gender equality, the majority of male politicians are still overwhelmed and directed by a patriarchal view of politics and leadership.

Looking back, it seems clear to me that the suspension of the running mates clause for ten years was done purely to remove the leaders, and in the case of Zanu PF, to prevent Mugabe from nominating his successor. This system would likely have favoured Joice Mujuru, the incumbent Vice President and those who are opposed to her ascendancy would have none of it. It was their advantage that the majority of them also had the key roles in the constitution-making process. Mnangagwa sometimes alternated with either Chinamasa or Goche in the Management Committee. Secondly, the suspension of the clear succession procedure where the VP succeeds the President and its replacement by a system where the party selects and nominates a replacement satisfied the objective in Zanu PF of those desirous of stifling Joice Mujuru’s bid to succeed Mugabe. It meant that instead of it being clear and obvious, she still faces the possibility of contestation.

In the next part, we shall go further and perform a further dissection of the succession procedure in the constitution and explain why it has potential to cause serious trouble for the nation if it is not handled more carefully.

Note to editors: You are free to publish this with the qualification that this is an extract from the first draft of a monograph entitled, “The Making of the New Zimbabwe Constitution” and that the extract first appeared on http://www.newzimbabweconstitution.wordpress.com

Public Interviews Expose Mediocrity on the Bench

16 Jul

Public Interviews Expose Mediocrity on the Bench

Alex T. Magaisa

Yesterday, I posted a blog on the new judicial interview process in Zimbabwe. On the same day, the Judicial Service Commission interviewed candidates to fill vacancies at the Supreme Court. All candidates were either judges of the High Court or the Labour Court seeking elevation to the Supreme Court.

From the running commentaries of colleagues who witnessed the event and the press that has reported on it, it looks like it was a spectacle that did a lot to expose the quality of the bench. A few candidates received good reviews but a lot seem to have been exposed for their lack of depth. I remember making a remark after reading some of the commentary that it looked like the greatest threat to the judiciary was not a lack of independence but the questionable competency of the judges.

The most glaring example of the competency gap is that one prospective candidate was apparently asked to differentiate between an “application” and an “action” – both of which are procedures by which legal matters are brought before a court. The difference may not be obvious to an ordinary person but it is an elementary one to law students let alone to a fully-fledged lawyer and judicial officer. For a judge not to know the difference is criminal. And yet this prospective candidate, who is already a judge, actually aspires to become a Supreme Court judge. You have to ask the question, how did she ever become a judge in the first place?

Asked further questions of an elementary character, she apparently promised that she would learn. Learning on the job is not a problem. Most young people starting out in their careers learn on the job. But not for an appellate judge. You do not go to the second highest court in the land to learn the difference between an application and an action. One of the critical elements of a judge is that litigants and lawyers must have confidence in you as a competent judicial officer. If they doubt your competency, you will struggle to earn their respect and confidence. Some of the judges seem to have exposed themselves in these interviews.

On this issue of competence, I am reminded of an instance where a lawyer appeared before a judge and asked for the postponement of a matter that was supposed to start on that day. The lawyer on the opposite side opposed the application and argued that the court should proceed with the matter. The judge then reserved judgment on the application for a postponement. He wasn’t a corrupt judge. He was just oblivious of the fact that by reserving judgment, he was, in effect, postponing the matter as requested by the first lawyer. Lawyers speak of this judge in hushed tones.

All this reminds me that during the constitution-making exercise one suggestion was that all judges must be made to re-apply the same way that the Kenyans took after the adoption of their new Constitution a year before us. This suggestion was resisted by some of our counterparts. The judges themselves were equally uncomfortable with this route and these interviews have exposed why. One can imagine there would have been a lot more embarrassment for most judges had they all been re-interviewed. Clearly, there seems to be a lot of mediocrity on the bench. I have heard of some judges who are notorious for inordinate delays in handing out judgments or dealing with reviews of cases from the Magistrates’ Court. But they are at the Supreme Court already. Lawyers in practice know them but they won’t say for obvious reasons.

One result of yesterday’s rigorous process will be that in future candidates will be better prepared and if they do not feel competent enough, they will not accept nomination which would only result in utter humiliation. It is a shame we won’t know which of the nominees were nominated by the President and those nominated by the public. Like I said yesterday, it would be good to be reassured that in the end public nominees get equal opportunities as much as the Presidential nominees. We can only know that if we know the Presidential nominees and judge their level of performance against that of the public nominees.

But it is worth noting that the same judge who could not explain the elementary distinction between an action and an application was herself appointed by the President. Which begs the question: how many more are there on the bench who are in her class?

The public interviews also help to expunge one notorious myth: that judges are people who are extremely clever and knowledgeable about the law. They are not. They have the power that the law confers upon them but that doesn’t make them the best exponents of the law. The fail sometimes and their decisions must therefore be critiqued and when they have gone wrong, they must be corrected. Besides, they are also human and they falter just like you and I.

I was keen on a public interview process for judges and I am pleased we have seen it in practice. It should apply to all senior public officers.

waMagaisa

Does the public have a role in Zimbabwe’s new judicial appointments process?

15 Jul

Does the public have a role in Zimbabwe’s new judicial appointments process?

Alex T. Magaisa

The simple answer to this question is that, yes, it has but the Judicial Service Commission must work to ensure that this role is actually realized in practice. This is an extract from a book that I am writing on the constitution-making process in Zimbabwe. It is relevant because there is currently an on-going process of appointing judges to the High Court and the Supreme Court of Zimbabwe – the first such appointments since the new Constitution came into force.

The appointment of judges to the courts of law is provided for in section 180 of the Constitution of Zimbabwe (hereafter “the Constitution” and all references to sections in this article will be in respect of the Constitution).

Advertisement

In terms of section 180(2), when a judicial vacancy arises, the Judicial Service Commission has a mandatory duty to announce the vacancy by public advertisement and to call for nominations from the President and members of the public. This is the first time that the public is involved in the judicial nomination process. In the past, only the President had the power to nominate candidates for appointment to judicial office.

Rationale of Public’s Role

The rationale of involving the public in the judicial appointments process is based on the objective of democratising the process and more fundamentally, the need to reaffirm one of the pillars upon which the new Constitution is constructed, which is that the authority of the State is derived from the people of Zimbabwe. This applies to all the three arms of the State. In respect of the judiciary, section 162 provides that judicial authority “derives from the people of Zimbabwe”. In regard to the executive section 88 provides that “Executive authority derives from the people of Zimbabwe …” and likewise, in relation to the legislature, section 117 provides that “The legislative authority of Zimbabwe is derived from the people …”

In respect of both the executive and the legislature, the public has always had a direct role in selecting office holders through the facility of elections. Yet in respect of the judiciary, the public has never had a specific role. The process has instead been shrouded in secrecy, performed and controlled entirely by an elite sector of society with the Justice Minister and the President at the centre. People have merely heard through announcement in a newspaper that so and so has been appointed a judge of the High Court or Supreme Court. How this is done and how one is selected from among the hundreds of lawyers has been a complete mystery to most people. Yet incredibly, the authority that these judges exercise is supposed to derive from the same people who have no clue and no role whatsoever in their appointment. Such a situation did not make sense.

In some countries at certain levels of the judiciary, judicial officers are elected in fulfilment of the principle that their authority is derived from the people. In making the Zimbabwean Constitution, we did not go as far as that because the data did not suggest that people preferred an election of judicial officers. In any event, given the manner in which our brand of elections is conducted it is probably safe that such officers whose job calls for professionalism more than popularity are not subject to electioneering. But nevertheless, mechanisms were included in the appointment process to ensure that the people do have some role and input in the appointment process, which is probably a fair half-way approach to meeting the goal of democratization and maintaining professional standards on the bench. This background to this principle is important to what I have to say in this chapter regarding the appointment of judges and the role of the public in that process.

Actual Process

After calling for nominations, the JSC is required to consider and short-list them if necessary and then carry out public interviews of the prospective candidates. Thereafter, the JSC must prepare a list of three candidates as nominees per vacancy and this list is submitted to the President who will pick a candidate from that list. If the President is not satisfied with the recommended candidates on the first list he must require the JSC to submit a second list of three nominees whereupon he must appoint one of those nominees on the second list.

This sounds simple but it is important to clarify a few things in order to appreciate the thinking behind this procedure.

• First, the role of the public in the nominations and public interview process is a substantive one and not merely a window-dressing exercise to pretend that the people are involved. It must be given full effect by the JSC.

• The second point to note is that the JSC is required to submit a list of three names for each judicial vacancy. If there is one vacancy, the JSC is expected to submit three names for the vacancy. Since it is possible that the President may reject candidates on that shortlist, the JSC must hold a reserve list of 3 candidates to be submitted should that become necessary. Likewise, if there are 3 vacancies, the JSC is expected to submit 9 names split into 3 names per vacancy. There should also be a reserve list from which nominees can be drawn should the President reject any of the first sets of nominees. The important point here is that it must clear where there is more than one vacancy, who the three nominees for each vacancy are.

• Third, it is clear from the use of mandatory language in section 180(3) that the President is constitutionally obliged to appoint from the second list of nominees where he would have rejected candidates from the first list. The President cannot continue to refuse to appoint from the recommendations of the JSC.

The Moral Hazard & Protecting Public Confidence

One important question that will obviously arise from this process is whether the expansion of the system to allow the public to nominate candidates will have any effect at all, particularly because the authority that ultimately holds the power to appoint (the President) is also allowed to make nominations. This situation creates a moral hazard, which is the risk that the authority that appoints is more likely to prefer his/her own nominees for appointment. The fear will be that since the President is allowed to nominate candidates, he/she would naturally favour his/her own nominees over the nominees made by the public. If this is the case, then the whole public nomination and interview process would turn out to be nothing but an expensive charade. It is therefore important for the JSC to develop safeguards that would protect public confidence in the judicial appointment process. Such safeguards must work to reduce the effect of the moral hazard that has been identified. These safeguards would include:

• First, ensuring that the JSC is fair, impartial and gives equal opportunities to all candidates regardless of the source of their nomination.

• Second, ensuring that the process is based primarily on merit and demonstrating the merits of each candidate in terms of their performance at the interviews and their track record.

• Third, proper disclosure where other criteria has been used, for example, the use of section 184 which requires regional and gender diversity in the judiciary. If the objective particular appointments is to promote women or persons from under-represented regions, there must be transparency.

• Fourth, sufficient disclosure of all information about the candidates including their personal background, qualifications, track record. This information should be available to the public.

• Fifth, and perhaps most importantly, the disclosure of the source of nomination so that it is known which candidates were nominated by the President and those that were nominated by the public. While it might be argued that it would be improper to do so prior to the interviews, this information should however be made available afterwards. It is a public process after all and there should be no secrecy about it. This is an important indicator over time regarding the pattern of appointments between public and Presidential nominees. If the pattern of judicial appointments shows that candidates nominated by the President are invariably appointed ahead of nominees made by the public, this might be cause for concern about the fairness and transparency of the process. If on the other hand some nominees of the public are seen to also receive appointment ahead of the Presidential nominees, this will enhance public confidence in the nomination process. It is important for members of the public to know that their role in the nomination process is not merely a window-dresser designed to give a modicum of openness and transparency in the judicial appointment process when in reality it has no effect.

It is important also to note that the JSC itself as a constitutional and administrative body must protect its integrity and processes. It is required by section 191 to conduct its business in a “just, fair and transparent manner”. These safeguards, in particular the disclosure of nominations and their source are designed primarily to reduce the moral hazard and more generally to give effect to the requirements for a just, fair and transparent way of conducting the appointments process. Public confidence in the process will take a serious knock if there is poor or no disclosure of information relevant to the public nomination and interview process.

Secondly, since they have a role in the nomination process and the interviews are conducted in public, it would also be fair to ensure that members of the public have an opportunity to present information and questions that the JSC would put to the prospective candidates. The Constitution may not specifically say that the public can ask questions or present information to the candidates but for purposes of fulfilling its role as a fair, just and transparent body, the JSC can and should find ways to accommodate public input into the process. This is not simply about the public watching from the gallery but actively finding ways to involve them in the process, even if by indirect means. After all, as we have already stated, the Constitution is very clear that all judicial authority derives from the people of Zimbabwe (section 162). It would be contrary to the spirit of this clause to exclude them from the process.
Since it is an administrative body, the JSC must also know and appreciate that its processes, actions and omissions constitute administrative conduct and are therefore subject to review. This means that it has a duty under section 68 of the Constitution to ensure that its conduct is “lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair”. Any failure in this regard may leave the JSC open to legal action for a review of its conduct and other legal action for the breach of a fundamental right. It is possible under section 68 (2) for a person to request reasons for the non-appointment of his or her nominee or indeed for the nominee to make such a request if he or she is aggrieved. Under this provision, these reasons must be given promptly and in writing.

Role of Parliament

The very first draft of the Copac constitution had made provision for the role of Parliament in the judicial appointments process. A committee called the Parliamentary Public Appointments Committee had been created to either approve or nominate appointees for senior public offices. The object of this was to ensure parliamentary oversight in the process and to fulfil the principle that judicial authority derives from the people by giving a role in the selection of judges to their parliamentary representatives. However, for some inexplicable reason, this critical committee was scrapped at the latter stages of the negotiating process. An alternative suggestion to give this role to the parliamentary Committee on Standing Rules and Orders was also rejected.
These shortcomings notwithstanding, it is my submission that Parliament can and should still play a role in the judicial appointments process through its portfolio committee on justice and parliamentary affairs or any other relevant committee in charge of justice affairs. As all institutions and agencies of the State are accountable to Parliament, the relevant portfolio committee should, if it considers it necessary to do so, summon the JSC to account to it in respect of its judicial appointment processes and procedures to ensure fairness, justice, impartiality and transparency and indeed that provisions like s. 184 on diversity in the judiciary are fulfilled. Parliament should therefore watch closely the on-going appointment process and require accountability from the Judicial Service Commission and the relevant Minister responsible for justice. That way lessons can be drawn from this process with a view to improving future appointment processes.

waMagaisa

wamagaisa@yahoo.co.uk

Constitutionality of the Toll-gate Fees Regulations

11 Jul

Constitutionality of the Toll-gate Fees Regulations

Alex T. Magaisa

11th July 2014

The Zimbabwe Lawyers for Human Rights (ZLHR) has launched an urgent application to court challenging the validity of the Toll Roads (Regional Trunk Road Network) (Amendment) Regulations, 2014 under SI 106/ 2014 (hereafter the “Toll-gate Fees regulations”). The primary purpose of the Toll-gate fees regulations is to increase the toll fees by 100%. Under the new regime, users of light private vehicles will now pay US$2 up from US$1. Users of haulage trucks will now pay US$10, up from US$5. These toll fees are effective from today, 11th July 2014.

ZLHR, a body of human rights lawyers has argued that the increase is unjustified. According to the press, they contend that the increase is arbitrary, oppressive and punitive in the context of the tough economic environment. They argue that no consultation was done with the motoring public before raising the fees as the law requires. They cite a breach of Section 3 of the Administrative Justice Act which requires that policies to be reasonable and fair.

The Administrative Justice Act is the legislation that provides a facility for challenging the conduct and decisions of administrative authorities. Under Section 3 of the Administrative Justice Act, an administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person is expected to act lawfully, reasonably and in a fair manner. Where the administrative authority has already acted, it is required to supply written reasons for that action either within the period specified by law or within a reasonable period after a request.

I have not read the full urgent application of the ZLHR but presumably, they have sought the reasons for these increases and they have not been supplied but meanwhile the implementation of Toll-gate fees regulations was imminent, hence the approach to the court.

As I have not yet read the application, I am not sure whether the ZLHR application alludes to the constitutional issues arising from the Ministry’s conduct. I wish therefore to make a few observations regarding the constitutional issues as I am currently in the process of writing a book on the reasoning behind the clauses of the Constitution using the experience earned from my vantage position during the constitution-making exercise. I recall arguing strongly for the inclusion of the right to administrative justice and submitting a research paper on administrative justice to justify it.

Section 68 (1) of the Constitution make provides for the right to administrative justice. It states that every person has a right to administrative conduct that is “lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair”. Subsection (2) provides that any person whose “right, freedom, interest or legitimate expectation has been adversely affected by administrative conduct” is entitled to be given promptly and in writing the reasons for such conduct.

The purpose of these clauses is to ensure that administrative conduct meets these standards. Subsection (1) sets the highest standards expected of any administrative conduct and subsection (2) sets out the requirement for prompt written reasons for any decision that adversely affects the rights, interests or legitimate expectations of any person. Looking at the case, clearly the action of setting Toll-gate fees constitutes administrative conduct. The question therefore is this conduct meets subsection (1) standards of lawfulness, reasonableness and fairness – both in the procedure and its substance. There was some controversy whether fairness should simply be about procedure (procedural fairness) but we argued that it should also include substantive fairness – that is, in addition to the process in arriving at a decision, the decision itself must be fair.

Therefore, ZLHR or anyone in this matter would be well within their rights to raise the constitutional argument regarding a breach of section 65, if they have not already done so. Section 65 provides for the enactment of legislation to give effect to the rights under section 65 and in particular to provide for a review of administrative conduct by judicial authorities. This is why the Administrative Justice Act exists – although it now needs to be realigned to meet the new and higher standards set out in section 65. This is also why the ZLHR have pursued the urgent application for review of the Ministry’s actions because the Administrative Justice Act permits persons to approach the High Court for a review of administrative conduct. Nothing will however, stop them from raising the constitutional argument before the High Court.

In terms of section 171(1) (c.), the High Court has jurisdiction to decide on constitutional matters except matters that are the exclusive preserve of the Constitutional Court. Section 175 (2) on powers of courts in constitutional matters allows a court to grant a temporary interdict or other relief to a party pending a decision of the Constitutional Court on the constitutional validity of that law. For purposes of finality, the constitutional matter may of course be referred to the Constitutional Court so that it makes a final pronouncement on its validity.

Parliament’s Role

I should also point out that Parliament has a role in this matter which it has a responsibility to use. Section 134 on subsidiary legislation makes it clear that while Parliament has the power to delegate its powers to make subsidiary legislation, such subsidiary legislation must not infringe or limit the fundamental rights and freedoms set out in the Declaration of Rights. Section 65 on the right to administrative justice which we have discussed above is one of those rights in the Declaration of Rights and Parliament has the power to assess and pronounce whether the Ministry’s conduct and SI has breached this right. Section 134(f) also provides that statutory instruments must be presented before the National Assembly for approval and must be submitted to the Parliamentary Legal Committee (PLC) for examination.

The PLC is a committee of Parliament made up largely of parliamentarians with a legal background and its mandate is to examine all Bills and statutory instruments to determine their compliance with the Constitution and/or the enabling primary legislation. We do not know whether the PLC has examined the Toll-gate fees regulations and if so, what its recommendations were. However, if it has not yet done so, then it is important that the PLC perform its mandatory obligation set out in section 152(3)(c.) of the Constitution, that is, to examine the statutory instrument and to report to Parliament and the relevant Minister on its constitutional validity.

The only way to make the Constitution work is for citizens to make use of it and take an active part in its enforcement.

waMagaisa

wamagaisa@yahoo.co.uk

Follow us on Facebook @Alex Magaisa and Twitter @waMagaisa

Dual Citizenship Endorsed by Zimbabwe’s Highest Court

26 Jun

Dual Citizenship: A Tiny Story

Some musings on the morning after the Constitutional Court endorsed the validity of dual citizenship in the Constitution.

The issue of dual citizenship was one of the most contentious during the constitution-making process. The discussions went on forever. It was “parked” and “unparked” several times. Drafted and re-drafted many times. Eventually everyone saw sense. There was agreement that persons who are citizens by birth are entitled to have dual citizenship.

The manner in which the relevant clause is written is awkward but this owes to its messy and politically-charged negotiating history. There were those who stridently opposed it and when they eventually agreed they did not want it to be written as explicitly as was the case in the Constitution of Kenya. It would have appeared like an embarrassing climbdown and political parties, as a general rule, don’t like to be seen like they have climbed down.

But the fact was that it was agreed and the net effect of the Constitution was that Parliament could not affect citizenship of citizens by birth on grounds that they hold another citizenship. It was a victory for common sense; a victory for the Diaspora and a victory for Zimbabwe as a nation. But even after the referendum and approval of the Constitution, some people still insisted that there was no dual citizenship even when the supreme law of the land was clear. They did not want to admit the reality. It was frustrating arguing with these folks but we knew there would be no other way. So we thank the Court for confirming what was already plain and obvious.

The battles in the negotiating rooms were intense, I tell you. I had written severally on this issue before. As someone coming from the Diaspora, there was a feeling among opponents of dual citizenship that anaMagaisa were representing self-interest! We had lots of banter over that – all good-natured I must add. They did not realise that even though I could have, I had not taken citizenship of another country. I was merely arguing in support of it not for personal reasons but because I thought that was the right thing for Zimbabwe and for my many comrades in the Diaspora whom I knew to be inextricably attached to their homeland and wanted dual citizenship to be recognised.

There were many points and there are quite a number of aspects of the Constitution of which I am not proud but I will always remember this as one of the higher moments of the constitution-making process. This is why I am recording my experiences in the form of a book so that present and future generations can appreciate how the clauses were negotiated and the thinking behind the wording of these clauses. I hope students of constitutional history and law would find some use in its contents. But it is not beyond the ordinary reader.

I also want to pay tribute to some of my comrades who silently but valiantly organised and pushed for the realisation of dual citizenship in the Constitution. Back in 2009, a group of friends in the UK came together to create a platform which would advocate for diaspora and development issues. I have not seen a more dedicated group of people. Many of them have become firm friends. Here I mention those who immediately come to memory at the time of writing this post: Msekiwa Makwanya, Yvonne Kuimba, Livingston Musoro, Chofamba Sithole, Natalie Jabangwe, Samuel Chindaro, Bheki Chatira, Gardner Mugashu, Catherine Madziva, Loreen Makwanya, Blessing Dumbura, Francis Dumbura, Ennie Mhende, Kenny Mupomba.

Forgive the ageing memory because I am sure I have missed out some names – my fresher-minded cdes here can add to the list. It’s not often that you get recognition for your efforts. That mini-diaspora conference that you held produced a position paper that was immensely helpful in the negotiating process. And for those long trips to London Met, when it seemed lonely and meaningless – you deserve a pat on the back. It was not in vain after all! 

ZEC & JSC: An Avoidable Conflict of Interest

25 Jun

ZEC & JSC: An Avoidable Conflict of Interest

A story in today’s Newsday raises an issue about the problem with our electoral landscape but more generally about the manner in which we have treated and compromised the institutional framework of the State.
The story tells us that Justice Rita Makarau is the acting Secretary of the Judicial Services Commission. But Justice Makarau is also the current Chairperson of the Zimbabwe Electoral Commission, the body that administers and supervises the electoral system in Zimbabwe. The Judicial Services Commission is a constitutional body that deals with matters affecting the judiciary. Part of its constitutional functions in terms of section 190 of the new Constitution is to advise government on matters relating to the judiciary or the administration of justice and to promote and facilitate the independence and accountability of the judiciary.

In order to run its affairs, the JSC has an administrative arm. This administrative arm is headed by a Secretary. It is this position that Justice Makarau held while she was a judge of the Supreme Court, before she was appointed to be the Chairperson of ZEC. And now we learn that she is still the acting Secretary of the JSC. I have nothing against Justice Makarau – she is my former teacher and I like to think we have a sensible, respectful and professional relationship – but with respect, this situation in which she is both Chair of ZEC and acting Secretary of the JSC cannot be right on many levels.

Principally, as a body that deals in highly contentious terrain, ZEC is highly exposed to litigation before the courts. It is true in fact that even at this moment, there are various electoral matters that are pending before the courts. Such cases might require judges to make pronouncements about her position and conduct as Chairperson of ZEC. And yet the Chairperson of ZEC is also the same person who as Secretary of the JSC handles the administrative aspects the judiciary – which include dealing with conditions of service for judges. In this particular case reported by Newsday, the new judges are demanding farms from the State as part of their conditions of service and Justice Makarau, as acting Secretary of the JSC is handling the matter on their behalf. They will get the farms, thanks to the facilitation of the acting Secretary of the JSC who is also the Chairperson of the country’s principal elections body.

This is not to say that these things have actually influenced the judges or will influence them in the way they handle matters involving ZEC. It is not even to say that Justice Makarau is incapable of doing her job, no. She is an honourable lady. But perception matters in these matters. The mere fact that her holding these two positions raises a potential of doubt; the possibility of a perception that individuals may become corrupted by such situations is damaging to both the judiciary and ZEC as institutions of the State that are supposed to be independent but also it does not do good to the reputation and standing of the individuals concerned. The whole point of creating the JSC was to ensure there is administrative independence for the judiciary. This is compromised if a person from another body comes in to preside over its administration. That is why a serving judge is appointed at the Secretary of the JSC.

With so many judges on the bench, why can’t the JSC select a new person to take over as their Secretary? Why should they place Justice Makarau in this invidious position which compromises the dignity of her office as ZEC chairperson and creates negative perceptions about the judiciary when it handles matters affecting ZEC? Practising lawyers will find it hard to raise these issues with the judiciary for fear of being accused of maligning or disrespecting the judiciary but there must be serious doubts among them and this situation cannot give them comfort.

On her part, Justice Makarau needs to look at it carefully and choose where she really wants to be: with ZEC as its Chairperson or with the Judiciary as Secretary of the JSC. It is not right that both posts should be held by one person. It creates potential for conflicts that can easily be avoided.

We know that the appointment of a serving judge to ZEC does not mean one has to resign as a judge but there is a good reason why one cannot perform his/her functions as a judge while he/she is chairing ZEC. It is to avoid these compromises. If, therefore, one cannot perform their judicial functions while they are chairing ZEC, it must follow, on the same rationale, that they cannot be Secretary of the body that administers the judiciary. They might as well sit in judgment of their own cause. If Justice Makarau cannot sit as a judge while she is ZEC Chairperson, surely she can’t be running it as acting Secretary of its administrative arm.

It is possible that poor remuneration and conditions of service of commissioners at ZEC has resulted in this situation where its Chairperson now has to moonlight as an officer of another commissioner. This is not fair on her and her office and indeed on the other commissioners at ZEC and other commissioners. If this is the case, which is quite likely, then the State must work to address the conditions of service of all commissioners otherwise there is no point thinking that they are independent when their impecunious circumstances forces them to take up other shifts elsewhere. What else could they be doing that we do not know – just to make ends meet?

Alex T. Magaisa
waMagaisa@yahoo.co.uk

Follow

Get every new post delivered to your Inbox.

Join 4,952 other followers