The fight over the appointment of the next chief justice played out again in cabinet — with renewed intensity and fierce exchanges — last week as Vice-President Emmerson Mnangagwa and his backers clashed with members of First Lady Grace Mugabe’s G40 camp in the presence of President Robert Mugabe.

The heated clash, which highlights how the race to succeed retired Chief Justice Godfrey Chidyausiku has become a highly politicised issue, occurred when Grace’s allies Jonathan Moyo, Saviour Kasukuwere and Indigenisation minister Patrick Zhuwao demanded that Mnangagwa must explain developments on the matter in view of the fact that he has been publicly speaking about the issue.

Other senior government officials, including Vice-President Phelekezela Mphoko, also queried why Mnangagwa seemed to be supporting an application by University of Zimbabwe law student Romeo Zibani, suggesting he has a vested interest in the matter.

Zibani filed a Constitutional Court application arguing that Chidyausiku acted unconstitutionally by appointing Justice Vernanda Ziyambi to preside over the Supreme Court hearing on an appeal by the Judicial Service Commission (JSC) against a High Court decision stopping public interviews to select Chidyausiku’s successor.

Ziyambi retired from the bench in November last year at the age of 70, but was re-appointed in an acting capacity for a year after five judges recused themselves from the case.

Mnangagwa, who was cited as the second respondent, deposed an affidavit where he highlighted that Chidyausiku, whom he temporarily forced into early retirement last year, could have violated the constitution by appointing Ziyambi as acting judge of the Constitutional and Supreme courts without her first taking an oath of office.

The ministers, Moyo, Kasukuwere and Zhuwao — Mugabe’s nephew — who are all law students at the University of Zimbabwe, were, however, of the view that Ziyambi was correctly appointed to the bench and quoted sections of the constitution to validate their arguments.

Government sources told the Zimbabwe Independent that Mnangagwa, a lawyer by training, told the ministers that they were free to argue their case through a court application “as friends of the courts” if they thought the JSC’s actions were lawful and Ziyambi was legally re-appointed acting judge.

“The vice-president was dismissive of their argument. He said the meeting could not go through the constitution, section by section, to hear arguments, hence he insisted that Moyo, Kasukuwere and Zhuwao approach the courts,” said an official.

The other camp, however, argued that Mnangagwa should respond given his public statements, highlighting that he had previously revealed the marks attained by candidates interviewed for the post.

“The debate was basically uncivil, hostile and aggressive, highlighting divisions in government. Mugabe did not intervene during the chaos, resulting in a stalemate as both parties maintained their positions.”

Meanwhile, Mnangagwa said in an interview this week that he is carrying out President Robert Mugabe’s mandate by amending the constitution so as “to correct an anomaly where junior members of the JSC are tasked to interview their boss.”

In a wide ranging interview with the Zimbabwe Independent, Mnangagwa said Mugabe tasked him with correcting the anomaly so that the constitution is amended to allow the president to appoint the chief justice.

“The constitution, in its current state, says that the JSC should conduct interviews of those who are interested in becoming the chief justice. In this case all the senior members of the JSC are interested parties so it meant junior members were to interview their boss,” Mnangagwa said.

“As a result of that anomaly the head of state, His Excellency President Robert Mugabe, who happens to be a lawyer also, called me and mandated me to correct that anomaly as the Justice minister,” he said, adding: “The president said ‘no, that is not possible’, so the assignment was to correct that and we have initiated the process. This is a constitutional crisis that we were going to encounter whether now or in the near future.”

Chidyausiku, who presided over the interviews, headed the JSC, while acting Chief Justice Luke Malaba, who was interviewed for the post, also sits on the commission. JSC secretary Rita Makarau was also interviewed for the post, while the Judge President George Chiweshe, who also sits on the commission, was shortlisted for interviews, but did not turn up.

Justice Paddington Garwe was the only shortlisted judge who does not sit on the JSC.

Mnangagwa has come under fire for proposing to amend the constitution, with critics accusing him of trying to influence the process so that his preferred candidate, Chiweshe, can be appointed.

Grace’s faction prefers Makarau, although Malaba — the best and neutral candidate for the job — is now the frontrunner. Malaba is most likely going to be the new chief justice, insiders say.

However, this week Mnangagwa said he was only carrying out Mugabe’s mandate.

Chidyausiku retired at the end of last month after serving for 16 years. He took over from Anthony Gubbay who had served for 11 years before he was forced to resign in 2001 after falling out with the government over the violent and chaotic land reform programme.

The chief justice’s succession has become a battleground for rival Zanu PF factions who view the position as strategic in Mugabe’s succession matrix.

The position of chief justice will be crucial in deciding Mugabe’s succession battle as the issue and related political processes, including electoral matters, might end up in the courts. – The Independent