Who will succeed Chidyausiku as Zimbabwe’s top judge?

By: 
Alex Magaisa

The dominant succession story in Zimbabwe is playing out in the political arena, where the main question revolves around Robert Mugabe’s successor, although if or when he might leave the presidency remains unknown and unpredictable.

However, there is another, less-discussed but nevertheless important succession story playing out in the third arm of the state: the judiciary. Here, the current Chief Justice, Godfrey Chidyausiku, is set to leave office in early 2017. Born in 1947, he turns 70 next year, the mandatory retirement age for Zimbabwean judges in terms of the country’s new constitution. No extension is permitted. For this reason, a successor must be found in the next 12 months.

Politics of the Chief Justice’s position

It would be naïve in the extreme to think the appointment of the country’s Chief Justice is not political. True: as a judge in the Constitutional Court and head of the judiciary, experience, leadership qualities and sound knowledge of constitutional law are important criteria for selecting the next Chief Justice. Ultimately, however, politics will play a more significant and defining role in the selection process. While the judiciary is supposed to be independent, politics will arguably play the decisive role in selecting the country’s highest judge. As head of the judiciary, the Chief Justice has an important role in defining the direction of the courts. An historical survey of the position of Chief Justice in Zimbabwe demonstrates the kind of politics that inevitably impact on appointments to and tenure of that office.

In 1960, the then Chief Justice of the Federation of Rhodesia and Nyasaland, Sir Robert Tredgold, resigned in protest at the Law and Order (Maintenance) Bill, which he argued was a gross infringement of basic human rights. He described it as “an unwarranted invasion by the executive of the sphere of the courts”. His principled stand against abusive political powers would later be vindicated as many nationalist leaders would be detained under that heinous law, which, ironically, was retained on the statute books after independence. The magistrates’ court building in Bulawayo, a landmark in the city, is named after Sir Robert. He was a Chief Justice who stood up against repressive politics.

One of his successors, Sir Hugh Beadle, who served during the tempestuous UDI period, played a prominent political role, both as adviser to the Governor of Southern Rhodesia and as mediator in the conflicts between the imperial authorities and the rebellious regime of Ian Douglas Smith. An excellent narrative by Justice Goldin, a former judge of the Rhodesian High Court, demonstrates the highly political role played by Chief Justice Beadle during that stormy period. Additionally, Justice Fieldsend, one of the judges who resigned in protest against UDI, in the wake of disagreements over the reception of the judgments in the famous Madzimbamuto case, would later earn re-appointment as the first substantive Chief Justice of Zimbabwe after independence – an affirmation that his stance against the politics of UDI had earned him the trust of the new nationalist government.

It was the politics of that tense transitional time that brought an early end to the tenure of the then Chief Justice, Hector McDonald, nicknamed the ‘hanging judge’ by nationalists on account of his dubious record for sending convicts to the gallows. The nationalists considered his position untenable and it was the subject of serious contention at the Lancaster House constitutional negotiations. The nationalists were adamant that McDonald could not continue as Chief Justice in the independence era. He, himself, had also threatened to resign if the nationalists won the 1980 elections. His departure was, therefore, influenced by the politics of the day.

The Chief Justice and the politics of the land question

An important political issue that influenced the last Chief Justice appointment was the land question. The same issue is likely to be influential in the selection of a successor. Chief Justice Chidyausiku has been the longest serving Chief Justice since independence, taking over from Chief Justice Anthony Gubbay, who was pushed out of office in 2002, at the height of the Fast-Track Land Reform Process (FTLRP). Gubbay was pushed into early retirement, accused of resisting land reform and protecting white landowners. Other Supreme Court judges at the time − Justices McNally and Ebrahim − also came under similar pressure to resign. The government accused the Supreme Court of perpetuating a ‘Rhodesian mentality’ through its judgments on land issues. Basically, the Supreme Court was seen by government as an impediment to the land reform process.

The selection of Chidyausiku as Chief Justice, ahead of more experienced seniors at the Supreme Court, appears to have been influenced by the fact that the government trusted him to support its philosophy on land reform. To his advantage, Chidyausiku had shown himself to be in sync with the Government’s philosophy on this critical issue. In January 2001, he had made some very critical comments on Chief Justice Gubbay over a speech that the latter had made during the opening of the legal year ten years earlier, in 1991. In that 1991 speech, Gubbay had publicly criticised the government over a proposed constitutional amendment which sought to remove the power of courts to make decisions on issues regarding compensation for land acquisitions. That speech had drawn criticism from government at the time.

Ten years later, Chidyausiku, who was then Judge President of the High Court, criticised his boss over that old speech. It was an unprecedented attack. Chidyausiku criticised Gubbay’s 1991 speech for giving “an implicit assurance to the white commercial farmers that if they sued the government after being evicted they would win their cases. This encouraged the farmers to sue and they have won their cases as promised”. This is an accusation that Gubbay refutes, arguing his court had, in fact, decided against commercial farmers in a major case in 1996. Gubbay’s speech in 1991 might have been ill-judged, given the sensitivities over the land question. However, in making that unprecedented public attack against his boss, Chidyausiku had broken new ground.

All this followed a case in which the Chidyausiku, as Judge President had tried to vary a decision of the Supreme Court regarding the land issue, a unique and unprecedented move in which a lower court tried to override a decision of a superior court. The speech in January 2001 was in reaction to the Supreme Court’s thwarting of that audacious legal step. For Chidyausiku, this was a legitimate action in the pursuit of a just cause, and this earned him praise from government.   At the same time, he had also endeared himself to the government as a suitable head during the stormy post-2000 period of fast-track land reform.

Not surprisingly, after the early departure of Gubbay and the elevation of Chidyausiku to Chief Justice, the Supreme Court reversed the earlier judgment of the same court which had held that the fast-track land reform programme was illegal. This was a landmark moment. The judgment confirmed the role of the judiciary as an instrument of land recovery, a phenomenon that must be understood broadly in the context of and as the flip-side to the previous role of the colonial judiciary as an instrument of expropriation. This point had been illustrated more specifically in the seminal decision of the Privy Council in the case of In Re Southern Rhodesia (1919). In that decision, the imperial judiciary had, in effect, decided that the native Africans in Southern Rhodesia had no title to land. Effectively, this legitimised land expropriation by the colonial authorities. This, in turn, set in motion a fundamentally skewed and unsustainable system of land ownership based on racial segregation. The Chidyausiku court’s historic act was to go to the opposite end of the spectrum.

In essence, the Chidyausiku court’s defining action involved undoing this long-standing system through judicial decision-making. This legitimised a land reform process that had broken virtually all laid-down rules. The prevailing philosophy was that these rules were subservient to the dominant imperative of land reform. Chidyausiku’s critics have accused his court of dressing up the decimation of the rule of law with the cloak of legality, while his supporters praise him for taking a bold position to support the legitimate cause of fairness in land ownership. Chidyausiku has been praised by Nathaniel Manheru, a pro-Government columnist in the state daily, The Herald, as a “great judge” who wrote history and gave the country “a bench that defends black rights in the afternoon of formal colonialism”. In this regard, Chidyausiku is considered as a revolutionary judge, having played an important role in the land revolution that took place during his tenure as Chief Justice. The role of the judiciary from the colonial times right up to the present era, and the dynamics of the rule of law associated with the land question, form the subject of research I have been undertaking for some time. It is a fascinating and revealing subject that demonstrates the critical role played by the judiciary in this process and the complexities of the notion of the rule of law*.

Against this background, it is arguable that the candidates’ attitude and approach toward the land question will play an important role in the selection of the next Chief Justice. Chidyausiku’s successor will be someone who will continue the philosophy of his era in regards to land reform and associated political interests. The government is not going to pick a candidate with a radically different approach. They will be careful not to appoint someone who might tamper with the legacy of the Chidyausiku court.

It is important to note also that Chidyausiku, like previous Chief Justices who had held office during the colonial era also had a background in politics. In 1974, he won election to the Rhodesian House of Assembly, where he represented what is now Mbare, in Harare. He stood down as an MP at the 1977 election, but made a comeback in 1980, as an elected member representing Zanu PF in Mashonaland East province. At independence, he was appointed Deputy Minister in government before he was re-appointed as the country’s Attorney-General in 1982. Later, he was appointed as a judge of the High Court. As a judge he was appointed to key commissions, including the one that investigated the abuse by ministers and senior politicians of a fund meant for compensating victims of the liberation war. It exposed gross levels of abuse but led to no prosecution of offenders. He also chaired the Constitutional Commission in 1999, whose draft constitution was roundly rejected at a referendum in February 2000. The constitutional process was severely criticised and opposed by civil society organisations and the main opposition parties.

Influence of succession politics

Another factor that could influence the selection process is the issue of succession politics currently affecting the ruling party, Zanu PF. While President Mugabe is still in charge, the various factions vying for succession will have a strong interest in who becomes the country’s top judge. The different factions might have their own candidate and they will try to promote him or her for their own future interests. This is particularly relevant in light of the fact that the Constitutional Court is the key forum for the resolution of any electoral disputes relating to elections for the office of the President. Each faction will want a man or woman they can trust to make the right decisions in those crucial matters. Here, it is worth noting that Vice President Mnangagwa, who also doubles up as the Justice Minister, will probably play a more dominant role in the selection process. Traditionally, it is the Justice Minister who has played a key role in the judicial appointments process, helping the President to perform his constitutional role. As a key presidential contender, Mnangagwa might have a head-start over his rivals in this area.

Given the nature of Zimbabwean politics, tribe and regionalism may also play some role in the process. These might be regarded by some as undesirable factors, but they are not to be discounted in the broader scheme of things, especially given the manner in which politicians tend to play the tribal and regional cards. In any event, s. 184 of the constitution requires judicial appointments to reflect broadly ‘the diversity’ of Zimbabwe, which might be regarded as including fairer representation of senior appointments across regions and communities. Here, it is perhaps worth noting that the two black Chief Justices so far, Dumbutshena and Chidyausiku, have come from the Zezuru grouping. Concerns over alleged over-representation of the Zezuru in national leadership positions have been heard in the past. Even though they should not take precedence, I wouldn’t be surprised if the tribal and regional cards are raised in the political debates over succession in the judiciary. These issues are already cropping up in the presidential succession debate and they could well spill over to the judiciary.

Gender equality

However, a factor that is likely to receive greater and more open attention is gender equality. If a woman were to be appointed, she would have the distinction of becoming the first female Chief Justice in the country’s history. Gender equality and equity in state institutions was an important issue during the constitution-making process and is reflected in many of its provisions. In this regard, section 184 provides that judicial appointments must reflect broadly the ‘gender composition of Zimbabwe’. Although progress in implementation has been slow, with fewer female appointments having been made, the attraction of that factor remains strong and may yet have an influence in this succession race. So far, all three arms of the state − executive, parliament and judiciary − have been headed by males. This might be regarded as an opportunity to promote equity and diversity by appointing a female candidate.

However, experience shows that this is unlikely to gain much traction in a society where patriarchy still rules. There was a lot of disappointment when a male candidate was appointed ahead of a female candidate, who was acting in the position of the Governor of the Reserve Bank of Zimbabwe, the central bank. In appointing too few women to cabinet positions, President Mugabe has argued that there are not enough qualified women. However, three years ago, the army appointed its first female Brigadier-General and just this year, the Air Force appointed its first female Air Commodore, reflecting a gradual recognition of women in senior leadership positions.

We will consider potential contenders in a separate article. For now, it’s worth noting that Justice Makarau, who in 2006 became the country’s first female Judge President and is presently the Chairperson of the Zimbabwe Electoral Commission while doubling up as Secretary of the Judicial Services Commission, could well be a powerful contender.

Irrelevance of seniority

Previous promotions have demonstrated that seniority is not, on its own, a key determinant. Other factors, such as affirmative action and political orientation, often trump seniority. When Dumbutshena was promoted to Chief Justice, he jumped the queue ahead of more senior judges. However, his appointment was part of transforming the judiciary, which had been inherited at independence from the colonial era. He was a junior judge but his elevation was seen to be in line with the promotion of previously marginalised blacks in the legal profession. Similarly, Sandura was rapidly promoted to become the Judge President of the High Court, ahead of others, as part of the same process. Previously, there were no black judges on the colonial bench. If seniority and experience had been used as the primary criteria, it would have taken years before black judges ascended to senior positions.

The appointment of Gubbay as successor to Dumbutshena was an exception, given that seniority might have played a bigger role. Reflecting upon his appointment, Gubbay expressed surprise at his elevation. He stated that it was unexpected because he had not considered himself to be in the running for a number of reasons. These included the fact that he had been appointed to the bench during the colonial era. The irony is that the government would later castigate the Gubbay court for reflecting a colonial mentality protecting white farmers when it was Mugabe who promoted Gubbay to the position of Chief Justice in 1991. This happened despite the fact that Mugabe had ample opportunity to select his own candidate to support the land reform exercise his government was embarking on after the expiry of the ten-year period, during which the Lancaster House property rights clause was entrenched. This was a contradiction. Just as the government was undertaking the process of amending the law to promote land reform, they appointed a judge who had been appointed in the Rhodesian era and whom they suspected of bias towards white landowners, as head of the judiciary.

The elevation of Chidyausiku in 2001 went against the rule of seniority, as he was a High Court judge and there were already experienced Supreme Court judges. Even if this was affirmative action, there were already two black judges, Justice Muchechetere and the highly respected and distinguished Justice Sandura, serving at the Supreme Court. However, Sandura appeared to have fallen out of favour with the Government. In the same article that praises Chidyausiku, Manheru, the Herald columnist, appeared to reserve some vitriolic criticism of Sandura, describing him as ‘a well decorated black judge who frothed for Gubbay [the then white Chief Justice] and his ilk, frothed for the retention of a white judicial ethos. Even after that bench was dismantled, you still had the remnant judges − all black − dissenting or even making strange judgments to cheers from western-sponsored activist civil rights NGOs’. Chidyausiku was considered more favourable in the circumstances, with the Government probably correcting the ‘mistake’ it had made in 1991 when it used seniority to appoint Gubbay as Chief Justice. The fact that Sandura was more senior to Chidyausiku was therefore disregarded. Sandura continued to serve, often issuing dissenting judgments in major cases, until he retired at the mandatory age of 70. He is regarded by some as probably the best Chief Justice Zimbabwe never had.

Here, the point is that even though there is a hierarchy on the current bench, with the Deputy Chief Justice Malaba and other senior judges of the Supreme Court, there is no guarantee that the Chief Justice appointment will follow seniority. There could well be dark horse lurking somewhere in the background who might be regarded as a more suitable for the role.

Conclusion

Overall, the point here is that there is no use pretending that the appointment of a Chief Justice is not influenced by the politics. It is a decision that will be watched closely by all political actors, inside and outside the ruling Zanu PF party. What is certain is that the next Chief Justice will be a man or woman whose philosophy is in sync with the philosophy of the Zanu PF establishment. He or she will be a person who can be trusted to safeguard interests of the establishment and, more specifically, someone who will not be a threat to what are regarded as the gains of the land revolution. In this regard, Chief Justice Chidyausiku has served his term well, even to the annoyance of those who despised the government’s land reform programme and Zanu PF politics.

In a future article, we will assess the potential contenders given that, for the first time, the selection process will be a very public affair thanks to the new constitutional procedure that requires all candidates to undergo interviews. For the first time, the drama will be played out before the public gallery. There will be nowhere to hide. The President will have the final say but each man or woman will have to prove him or herself before the interview panel but most of all, in the court of public opinion.

This article is aken from Alex Magaisa's blog alexmagaisa.com. Alex can be reached by email at wamagaisa@gmail.com

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