Why Mnangagwa wants Mugabe to appoint the Chief Justice

It is the procedure of these appointments which I firmly believe must be in tandem with international good practice and be subjected to proper administrative process, with no internal or external influence whatsoever.  I went on to highlight that judicial independence can only be achieved when the constitutional bedrock on which such appointments are anchored is solid enough to arrest any mischief, perceptions and challenges that may arise in the administration of justice.  This background is crucial, as it will be able to recall each and every one of us to order at any such time we will be tempted to be taken adrift by waves of our narrow partisan interests.  Mr. Speaker, I have applied my mind on the contributions that were made by Hon. Members.  Such contributions will guide us during the amendment process.

I will start with findings and recommendations made by the Committee arising from the report presented by Hon. Ziyambi. The first item raised by the Committee is that the title of the Constitution itself must be amended from Constitutional Amendment No. 20 Act of 2013 to Constitution of Zimbabwe 2013 so that this Amendment Bill will lead to the enactment of Constitutional Amendment No. 1 Act.  While there appears to be the general consensus that this amendment must be done, it should be borne in mind that the changing of the title is not just done that simply, as it involves another amendment process to be initiated; given that the title itself is part of the text of the Constitution and we can seldom trivialise the text simply because it is a title and seek to change it willy nilly.

In any event, I was wondering if there is any one among us who is uncertain and confused that this proposed amendment is to the Constitution that we all endorsed in 2013.  To seek to amend the title of the Constitution in my view, will complicate the situation further.  It is one’s conviction that this amendment is to the effective and operational Constitution that matters, and thus the proposal to amend the text expressing the title of the Constitution may not be taken aboard by this proposed amendment as it was never part of the principles which were part of the drafting instructions to our drafters.

Mr. Speaker, I am grateful that after the Committee’s findings, the Committee has also been able to analyse contributions by our citizens and have been guided by those contributions to arrive at certain conclusions that they have presented to us as their recommendations.

Mr. Speaker, I am amenable to be encouraged by the recommendations made by the Committee which has clearly supported the Bill we are debating today.

Firstly, on the proposed amendment of Section 174 of the Constitution by the addition of subsection 2 that explicitly subordinates the two courts to the High Court but maintains the quality of basic conditions of service between judges of the High Court and judges of the two subordinate Courts, the Committee has not grappled with that position and has swiftly recommended that we cause that amendment.  This sentiment also appears to be shared by the majority of other members.

In fact, the Committee went further to dismiss a minority suggestion that we amend the Acts which deal with establishment of respective courts and leave the Constitution.  This clearly is an absurdity which flies in the face of settled legal principles that enabling Acts can only be enacted provided that their final scope, content and text is not at variance with the supreme law of the land. That said, it would be difficult to reflect a position in an Act of Parliament when the Constitution itself has a glaring lacuna or gap. The first and imperative action is for the legislature to move in and correct that anomaly.  Surely, Parliament cannot shy away from its duties that are constitutionally conferred and authoritatively given to it by the people.

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