As Zimbabweans struggle to survive, President Mnangagwa is setting the rigging machinery in motion. In this midweek read, Justice Mavedzenge, shows us how Mnangagwa is starting with Constitution Amendment No. 2 Bill.
President Emmerson Mnangagwa’s government has published a Constitutional Amendment No.2 Bill to amend the Constitution of Zimbabwe. Among other things, the Bill seeks to introduce radical changes to the current constitutional procedures regulating the appointment of judges to the Supreme Court and the Constitutional Court. The current procedures regulating judicial appointments are that the Judicial Service Commission (JSC) advertises existing judicial vacancies and calls for nominations to be submitted by members of the public. The JSC will then conduct public interviews of shortlisted candidates. After the interviews, the JSC submits to the President a list of three nominees per each vacancy. The President must appoint a candidate from that list. However, if the President takes the view that none of the listed nominees qualifies for appointment, he or she must request the JSC to submit a further list of three nominees for the vacancy after which the President is bound to appoint from that list. This is all going to change if the proposed amendment is passed into law.
If passed into law, the proposed amendment will give the President the power to select and appoint judges to the Supreme Court and the Constitutional Court. Whenever there are vacancies in the Constitutional Court, the President will nominate candidates from those who are already sitting as judges in the High Court and Supreme Court and appoint them to be judges in the Constitutional Court. All he needs to do is to consult the JSC but is not bound to follow the its advice. A similar procedure would be followed to appoint judges to the Supreme Court by nominating those who are already siting as judges in the High Court. Effectively, if this Bill is enacted into law, the President (alone) will determine whether or not a judge of the High Court and Supreme Court can be elevated into a higher court. If the President does not like a certain judge, that judge will not be nominated for elevation. Thus, the proposed law will cause a chilling effect on the judges especially when they handle matters which affect the President’s interests. It therefore seems that through this amendment, the executive seeks to have a firmer control over the judiciary.
There seem to be more to this amendment than just the desire by the executive (as a group) to capture the judiciary. Could there be a personal interest on the part of President Mnangagwa to redefine the composition of the Constitutional Court in preparation for the 2023 elections? Or is it a reflection of intensifying factional battles within his party?
This amendment is being introduced at a time when in terms of the Constitution, the Constitutional Court must now be separated from the Supreme Court so that the two Courts sit as distinct courts. The official separation must be declared on the 22nd of May 2020. Currently, there are 15 judges who sit in both courts as Supreme Court judges and Constitutional Court judges. The general expectation is that the most senior seven judges of the Supreme Court will be appointed to the Constitutional Court bench while the rest remain as judges of the Supreme Court. However, if the amendment is passed into law, the President will have power to choose whoever he wants from not only the 15 judges in the Supreme Court, but also from the High Court, to be appointed into the Constitutional Court.
In Zimbabwe, the Constitutional Court is the only court with power to determine disputes arising from presidential elections. If the President is given the power to appoint judges to this court, without any restrictions, then President Mnangagwa will have the power to select and appoint judges who will preside over any potential dispute between him and any opposition candidate in the 2023 election. In addition, the Constitutional Court is the only court that can determine whether the President has failed to fulfil his or her constitutional obligations. In the event that the President is impeached, the only court which can make a judgment on the validity of the impeachment is the Constitutional Court. By virtue of the proposed amendment, President Mnangagwa will enjoy the power to select and appoint judges who will judge whether or not he can be impeached and, in the event of an impeachment by Parliament, those judges will have a final say on whether or not the impeachment is valid. Thus, through this proposed amendment, President Mnangagwa will have the power to reconstitute the composition of his final line of defence – judges of the Constitutional Court.
On the surface, it seems that President Mnangagwa is secure in his current position. However, some have argued that he is an insecure president. Several signs show his political vulnerability and insecurity. President Mnangagwa came to power on the back of a military coup against former President Robert Mugabe. Probably President Emmerson Mnangagwa knows that it is possible for him to be removed the same way President Mugabe was removed – a coup usually begets another coup. A further source of political vulnerability for President Mnangagwa is that his victory in the 2018 election remains a subject of political contestation. His legitimacy is therefore questioned. Furthermore, the economy is in a comatose state and the welfare of citizens across the political divide has severely deteriorated. Although on the decline and strategically weak, the opposition still enjoys significant support. All these factors point towards the possibility that the political rug upon which Mnangagwa is standing may be pulled, precipitating a dramatic fall from power similar to what happened to Mugabe. In this political context, the proposed amendment seems to be part of the package of reforms which President Mnangagwa is undertaking to secure his presidency beyond his current tenure and mitigate threats from within and outside of his party.
Justice Alfred Mavedzenge is a Legal Advisor at the International Commission of Jurists. The views in this article are his own personal views.