President Mugabe in undisguised failure to uphold constitutional amendment No 19The opinion by Tererai Mafukidze a President Mugabe apologist masquerading as a local lawyer in the Zimbabwe Independent on Thursday, 10 June 2010, under the misleading header ‘MDC spurned chance for judicial reform,’ cannot be allowed to go unchallenged for its lack of merit.
The “learned” Mafukidze either does not know the meaning of the word spurned or alternatively chose the word to justify the political mischief that he intended to sell to the nation to discredit the MDC.
By using the word spurned in his header Mafukidze implied that the MDC scornfully and contemptuously rejected the opportunity that Sadc mediated negotiations presented the party to agree meaningful and irrevocable judicial reforms with Zanu PF.
After reading the facts on which he premises his wayward conclusion it becomes evident that the word was cynically used to discredit the MDCs political acumen as nothing he relied on supports his conclusion
To the contrary all the legal statutes he relied on clearly indicate that the MDC tried its best to legislate for legal reforms but for President Mugabe and not Zanu PF intransigence this once, the good intentions in the 15 September 2008 Global Political Agreement (GPA) have been deliberately scuttled from ill-conceived advice the President is getting from legal minds of Mafukidze’s ilk.
PRESIDENT Robert Mugabe’s recent appointments of three new High Court judges, promotion of one to the Supreme Court and appointment of another to the position of Judge President of the High Court were not only done in a surreptitious manner but more importantly in contemptuous and scornful contravention of the spirit and letter of Constitutional Amendment No19 (CA No19) and therefore illegally.
The ire the appointments raised in the MDC-T was thus as justified as it was expected by not just MDC-T members but by the populace at large and more particularly the beneficiaries of this Mugabe largesse and those that advised Mugabe to ignore the constitutional amendments and urged him to appoint and promote the Judges without prior consultation with the Premier having taken place.
MDC-T spokesman Nelson Chamisa was not only politically correct but legit as well when he said in response to these appointments “the country’s delicate political situation meant Mugabe should have consulted with coalition government partners in matters involving important decisions such as judicial appointments”.
Mafukidze’s hypothesis that “MDC-T’s complaints that the appointments were invalid have no basis at law, provided the president followed the procedure for judicial appointments set out in the constitution,” cannot be disputed except that he then failed dismally to show that the President indeed followed that procedure.
Indeed the constitution does not follow the best practices on the appointment or promotion of judges because the constitutional provisions are the acceptable best practice for the country in this regard.
But for obvious reasons the belief that “MDC-T erred grievously in chasing the sharing of political power in the executive and in the legislature while ignoring reform of the judiciary, the manner of judicial appointments, judicial performance and judicial ethics,” got the better of Mafukidze’s legal mind and led him to seek its justification legally which proved a bit more difficult for him than he had subjectively thought.
Subjective yes because for him to imply that judiciary reforms are far important than the Attorney General appointment the MDC-T has been against from the day it agreed the GPA as if that position is not part of the judiciary exposes the clouded thinking in Mafukidze that can only be ascribed to bad political intentions against the MDC-T.
It cannot be seriously disputed that “the judiciary has virtually remained untransformed and does not enjoy the confidence of the general public.”
Likewise that “unless the judiciary is forced to transform, the desire to uphold the rule of law expressed in the Global Political Agreement (GPA) is a fat pie in the sky.”
For someone masquerading as a qualified lawyer like Mafukidze does, to then argue as he does, that the GPA does not trump the constitution for so long as the political agreement among the three main parties exists notwithstanding as he puts it “Article 1 of the agreement annexed to the constitution,” is rather absurd and irrational if not outright stupidity then unpalatable mischief.
CA No 19 is tacit and unambiguous and allows no room for misinterpretation in so far as the GPA reigns supreme in governing procedures to be followed during the tenure of the coalition government.
Surely a lawyer like Mafukidze would have familiarized himself with Section 115 of our constitution that was introduced by CA No19 before rushing to print opinions that exposes to be an expert in the mould of “IT Expert” Denshad Mutsetse of the Roy Bennett trial fame.
For his benefit the section is reproduced herein its fullness to put his attempt to discredit what he calls Article 1 of the agreement annexed to the constitution but which is in fact section 1 of Schedule 8 of our constitution.
“The Constitution is amended by the insertion after section 114 of the following section"
“115 Transitional provisions: Schedule 8
(1) Definition of terms
“after consultation” means that the person required to consult before arriving at a decision makes the consultation but is not bound by the advice or opinion given by the person so consulted;
“in consultation” means that the person required to consult before arriving at a decision arrives at the decision after securing the agreement or consent of the person so consulted;
“Interparty Political Agreement” means the agreement between the Presidents of the Zimbabwe African National Union-Patriotic Front (ZANU-PF) and the two formations of the Movement for Democratic Change (MDC), on resolving the challenges facing Zimbabwe, as set in Schedule 10, which was signed at Harare on the 15th September, 2008, and witnessed by the President of the Republic of South Africa as facilitator mandated the Southern African Development Community (SADC) [, as subsequently amended];
“Prime Minister” means the Prime Minister whose appointment is referred to in Article 20.1.4 of the Interparty Political Agreement;
(2) Schedule 8 shall have effect from the date of commencement of the Constitution of Zimbabwe Amendment (No. 19) Act, 2008, and continue in force during the subsistence of the Interparty Political Agreement.
(3) The provisions of this Constitution shall, for the period specified in subsection (2), operate as amended or modified to the extent or in the manner specified in Schedule 8.”
Schedule 8 section 1 of the Constitution cross-references to Section 115 of our constitution meaning the schedule must be understood within the context of section 115 of the constitution and nothing else.
Schedule 8 itself is a duplication of Article XX of the Interparty Agreement of which Article 20.1.3 (p) is crucial in exposing Mafukidze’s mischief.
That section 84 (1) of the Constitution provided, before CA No19 was enacted, that the “Chief Justice and other judges of the Supreme Court and the High Court shall be appointed by the president after consultation with the Judicial Service Commission,” was the very reason why Article 20.1.3 (p) stated as it did and still does that the President shall do so "in consultation with the Prime Minister, makes key appointments the president is required to make under and in terms of the Constitution or any Act of Parliament".
Out of unjustified political mischief Mafukidze argues that because there is no definition of what are “key appointments” in the agreement or elsewhere in the Constitution, Article 20.1.3 (p) is irrelevant in MDC-T outcries against the appointment of judges as the term “Key appointments” become matters of subjective judgment.
That would be the case if the judges were not appointed in terms of section 84(1) of the constitution to which the article makes direct reference by stating “key appointments the president is required to make under and in terms of the Constitution or Act of Parliament.”
The phrase means that any appointment the President is or was required to make in terms of the constitution or any Act of Parliament is considered a key position and thus must be made in accordance with section 115 sections 1-3.
In Section 115 of the Constitution subjective meanings of “in consultation with” and “after consulting with” are curtailed within the definition of terms used in that section.
Alternatively Mafukidze argues that the president in terms of the same GPA has the power to make appointments which may even seem “key” without the need to consult the prime minister without giving any example of such appointments.
This was to be expected because unbiased reading of section115 of our constitution has no room for such appointments by the President whether or not Mafukidze likes it or don’t.
Mafukidze’s further argument that it seems that where the president is required to consult the prime minister, specific instances are spelt out is clearly a desperate and futile attempt to diminish the specifity of section 115(2) and (3) of the constitution which refer to presidential appointments the President is required to make in terms of the amended constitution and acts of Parliament for political expedience that must be dismissed with the contempt it deserves..
That judicial appointments are matters of serious constitutional import makes them key appointments.
For Mafukidze to argue that “if there had been an intention to vary the appointment process stated expressly in the Constitution would there not have been specific reference to judicial appointments,” implies that they do not fall into the category the constitutional amendment termed key appointments the president is required to make in terms of the Constitution and or Act of Parliament” which is unsustainable as the appointments were and are still provided for in terms of sections 84 and 115 of the constitution.
The only exception is that the procedure defined in section 86(1) has been supplanted by the new procedure in section115 that must prevail during the tenure of the coalition government and by deduction if the coalition government is replaced the same appointments will revert to the procedures set out in section 86.
The argument that the judiciary was sparred any scrutiny in the GPA is equally incompetent unless Mafukidze excludes the judiciary from the definition of STATE ORGANS AND INSTITUTIONS as used in ARTICLE XIII?
If the judiciary is part of the State organs and Institutions then its reforms were collectively addressed by provisions of Article XIII of the GPA which is also part of section 118 schedule 11 0f our constitution.
Mafukidze need only read the definition of terms in section 115 of our constitution to understand why his belief that terms of section 31K (2) of the Constitution that read “where the president is required or permitted by this Constitution or any other law to act on the advice or recommendation of or after consultation with any person or authority, a court shall not, in any case, inquire into either of the following questions or matters — (a) the nature of any advice or recommendation tendered to the president; or (b) the manner in which the president has exercised his discretion.,” does not subsist during the tenancy of the coalition government.
It was an absolute waste of time to argue from temporarily invalidated section similar to a person relying on an earlier will of a deceased where another produces a valid later version of the same excluding such person from beneficiaryship from the will.
The argument that Justice was a sitting Judge of the High Court elevated to Judge President in the latest appointments is blatant lies by Mafukidze.
Justice Chiweshe vacated the High Court Bench to become the ZEC Chairman and that settles the matters concerning his status as a former High Court judge recalled from retirement to become Judge President for political expediency of Mugabe and Zanu PF.
In the premise it suffices to say that Mafukidze’s view that Constitutional Amendment No 19 or the GPA did not alter the process for the appointment and promotion of judges in Zimbabwe, is informed by a deliberate refusal to accept the implications of section 115 of the constitution.
The opportunities that the GPA provided for judicial reforms were exploited to the optimum by the MDC-T.
The fact that Mugabe and Zanu PF are now refusing to adhere to the Constitution because they have never lived under any Constitutional rule does not translate into the MDC having contemptuously and scornfully refused to embrace judicial reforms.
Rather it is indicative of President Mugabe’s disdain towards reforms that expose his party to equal treatment before the law and that cannot be addressed by simply changing the constitution without military reforms.
The constitution is upheld where the custodians are afraid that law enforcers will not tolerate impunity by politicians.
More importantly as a lawyer Mafukidze must know that he is a judicial officer and his opinions must be beyond reproach and if has to interpret laws through the media he must at the very least give accurate interpretations of the legislation rather than rely on invalidated sections of the law that he appreciates or that favour his hypothesis.
President Mugabe and not the MDC is in contempt of the Constitution and thus spurning the judicial reforms envisaged in the GPA.
To normalize the situation Zimbabweans must emphatically reject him if he offers himself for President during elections.
With a good Constitution and unbiased law enforcement that would be just a formality.
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