JSC sparks new row over Acting Judge President after third in line picked

HARARE – The appointment of Justice Zimba Dube as Acting Judge President is unconstitutional, lawyers have said.

The appointment was announced by the Judicial Service Commission (JSC) in a notice to judges of the High Court on June 29, following the elevation of Justice George Chiweshe to the Supreme Court bench.

In the notice, JSC secretary Walter Chikwana said the appointment had been triggered by the automatic provision in section 181(2)(a) of the Constitution of Zimbabwe.

The cited section states: “If the office of Judge President of the High Court… is vacant or if the office holder is unable to perform the functions of that office, the next most senior judge of the court concerned acts as the Judge President.”

The hierarchy of judges of the High Court seen by ZimLive has Justice Garainesu Mawadze of the Masvingo High Court as the most senior High Court judge at present, followed by Justice Martin Makonese of the Bulawayo High Court with Justice Dube only third.

Constitutional law expert Professor Lovemore Madhuku said Acting Judge President was an automatic appointment under the constitution once the position falls vacant.

“The JSC cannot appoint an Acting Judge President. It’s a very serious scandal in itself because it has no power to do that. If the president had made the appointment, we would also ask what instrument he used,” Prof Madhuku told ZimLive.

He said whereas section 340 allows the president to make appointments, it also states that he can only do so in cases “except as otherwise provided in this constitution,” and section 181(2)(a) under which the JSC said it was acting was a “default position”.

JSC secretary Chikwana, admitting that Mawadze and Makonese were more senior, said: “Justice Zimba Dube is the most senior at the High Court in Harare at the moment. Mawadze is in Masvingo.”

A lawyer who declined to be named for professional reasons quipped: “The constitution says the next most senior judge. It does not say ‘provided such a judge is stationed at Harare.’”

Prof Madhuku said Mawadze should not have waited for the JSC to pronounce itself.

“If I were the most senior judge, I would have been issuing memos within hours of Justice Chiweshe’s promotion. It was not up to the JSC who takes over next,” he said.

President Emmerson Mnangagwa has not appointed a replacement for Justice Chiweshe, a delay which legal sources say is a deliberate strategy.

“They want people to sell their souls. It’s currently dog-eat-dog as judges fall over each other to position themselves by making pro-regime judgements,” said one source.

There is a feeling in legal circles that Justice Chiweshe was pushed out of the way through promotion after Justice Minister Ziyambi Ziyambi had accused him of appointing hostile judges to handle cases involving the government.

The Judge President is now seen as a vital position in the Zanu PF government’s plan to shop for friendly judges who will rubberstamp its decisions.