On 9th December 2016 the Permanent Secretary for Justice, Legal and Parliamentary Affairs revealed in an affidavit produced during High Court proceedings before Mr Justice Hungwe that Vice-President Mnangagwa, in his capacity as Minister of Justice, Legal and Parliamentary Affairs, had very recently sought Cabinet approval of his proposal to amend section 180 of the Constitution to change the procedure for the appointment of the Chief Justice, the Deputy Chief Justice and the Judge President of the High Court. The proposed amendment would allow the President to make appointments to these three offices after consultation with the Judicial Service Commission; this would replace the existing procedure, under which the President must make these appointments from among persons recommended to him by the Judicial Service Commission after an elaborate process that includes public interviews of candidates. The existing procedure, however, would continue to apply to the appointment of other judges.
This evidence persuaded Mr Justice Hungwe to order the Judicial Service Commission to suspend the imminent public interviews of four candidates for appointment as Chief Justice in succession to Chief Justice Chidyausiku, who retires at the end of February 2017. His judgment can be downloaded here. The Judicial Service Commission, however, immediately noted an appeal and proceeded to interview three of the four candidates on 12th December, as scheduled. The fourth candidate did not turn up to be interviewed.
This Bill includes provision for the new procedure for appointing the Chief Justice, the Deputy Chief Justice and the Judge President of the High Court, as foreshadowed in the evidence before Mr Justice Hungwe.
The Bill was published by the Clerk of Parliament in a Government Gazette Extraordinary on 23rd December under a covering General Notice following the standard form used when an ordinary Bill is published by Parliament. There is no reference in the General Notice to the Speaker or to section 328 of the Constitution governing amendment of the Constitution. Section 328(3) provides that a Bill that seeks to amend the Constitution may not be presented in the Senate or the National Assembly unless the Speaker has given at least ninety days' notice in the Government Gazette of the precise terms of the Bill.
