Why Mnangagwa wants Mugabe to appoint the Chief Justice

Mr. Speaker Sir, I also wish to highlight that it is not right to hold the notion that there are other pressing issues that should take precedent ahead of the imperative need of addressing gaps in our Constitution; as Hon. Ndebele clearly said in the closing remarks of his submissions before he quoted the late nationalist and legal icon, E.J.M. Zvobgo.  Is the Hon. Member insinuating that the Constitution is immaterial to the extent that we must ignore it up until a time when our economic fortunes have improved?   We must surely be guided by former South African Chief Justice, Ishmael Mohamed who emphasised the importance of the Constitution when he said: “The Constitution of a nation is not simply a statute, it is a mirror of the national soul, the identification of the ideals and aspirations of a nation, the articulation of the values binding its people and disciplining its government”.

Do we need a mirror of the national soul that is broken?  Do we need the identification of the ideals and aspirations of our nation to be in tatters? Do we want the articulation of the values binding our people and disciplining our Government to be on a blighted and shaky constitutional framework – no?  Interestingly enough yet paradoxical, Hon. Ndebele put his lessons at the University of Zimbabwe Law School into practical use by branding our Constitution sui generis, which means in a class of its own.  I hear he is a freshman at the University of Zimbabwe but deliberately refrained from reasoning that a Constitution with gaps and provisions such as Section 180 can hardly be described as sui generis.  Surely, the Eighth Parliament cannot go down in history as a Parliament that jettisoned its mandate of making laws for the peace, order and good governance of its nation and leave it all to the courts to grapple with the jurisprudence of interpreting and assigning meaning to half baked provisions.  We make laws as Parliament; the Judiciary interprets that law and the Executive implements and enforces that law.

Mr. Speaker, it is disturbing to note that some Hon. Members such as Hon. Cross and Chirisa prefer to align the legislation to the Constitution first before amending it, even if it has glaring lacunae or gaps.  Surely, this becomes a case of the proverbial cart before the horse maxim.  You can only align legislation to a Constitution with watertight and robust provisions.  A flawed constitutional framework means a weak legislative framework and consequently a society not found on justice, law and order.  Your guess of the by-products of such a society are as good as mine.  Surely, that is not the kind of society that we yearn for here in Zimbabwe.

Mr. Speaker, let me also turn to those who wanted to advance the notion that this is a partisan amendment.  While Hon. Members Mukwena, Nduna, Katsiru and Matambanadzo supported the Bill, I feel that they went too far to make it like the amendment is a party amendment simply because the party which also proudly supports and whose people I humbly subordinate myself to wishes to sponsor it and by virtue of that, it shall come to pass.  This amendment is an apolitical centered amendment that is found on the notion that for the administration of justice to be smooth, it must be predicated upon an independent appointment process, insulated from potential internal influence of its senior officials.

However, I wish to pay tribute to Hon. Mukwena, Hon. Katsiru, Hon. Matambanadzo, Hon. Phiri, Hon. Chakona, Hon. Mandipaka and Hon. Nduna for their emphasising the importance of enjoining the source from which judicial authority is derived in the appointment of senior judicial officers: the people through their popularly elected representatives, the appointment must be done by an official from a different arm of Government, which official has the authority of the masses from which judicial authority is derived – who is the President.  Even Hon. Maridadi was close to endorsing this notion, albeit vicariously, by referring to the role the Presidency plays in making the constitutional making process succeed, and by extension, the role the presidency can play in making the judiciary work through appointments. Unfortunately, he could not afford to be too clear for fear of reprisals from his party colleagues.

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