Retired Chief Justice Chidyausiku could have violated constitution in Ziyambi appointment

Retired Chief Justice Chidyausiku

Retired Chief Justice Chidyausiku

Daniel Nemukuyu, Harare Bureau
RETIRED Chief Justice Godfrey Chidyausiku could have violated the Constitution of Zimbabwe by appointing Justice Vernanda Ziyambi as Acting Judge of the Constitutional and Supreme Court without her first taking oath of office, Vice President Emmerson Mnangagwa said yesterday.

Justice Ziyambi retired from the bench in November last year at the age of 70 but she was re-appointed to the bench in an acting capacity for a year.

The first case she sat for as an Acting Judge was an appeal by the Judicial Service Commission (JSC) against a High Court decision stopping public interviews to select Rtd Chief Justice Chidyausiku’s successor.

The Supreme Court bench comprising Justices Ziyambi, Bharat Patel and Ben Hlatshwayo allowed the appeal and quashed the decision by Justice Charles Hungwe.

After the granting of the appeal, University of Zimbabwe law student Mr Romeo Zibani, who emerged the loser in the court case, approached the Constitutional Court challenging the constitutionality of Justice Ziyambi’s appointment as an Acting Judge when she had reached 70 years.

He is also challenging the constitutionality of the bench that threw out his case.

VP Mnangagwa, who was cited second respondent, did not comment on Mr Zibani’s grounds of contest but raised a fresh issue of failure to take oath of office.

“I do not take issue with the averments made by the applicant in paragraphs 1 to 8 of his founding affidavit. However, I believe third respondent did not comply with the peremptory provisions of Section 185 (2) of the Constitution.

“The peremptory provisions of Section 185 (2) of the Constitution require that a judge takes the oath of office upon appointment.

“My belief is premised on the fact that the letter of appointment of the fourth Respondent, which I also received, makes no mention of that issue,” said VP Mnangagwa.

Meanwhile, Rtd Chief Justice Chidyausiku has opposed the application saying he acted in terms of the law.

“For the avoidance of doubt, to the extent that the correct legal position is at variance with the averments made by the applicant in casu, such averments are disputed and or denied as if traversed seriatim,” he said.

Rtd Justice Ziyambi said her appointment as Acting Judge was lawful.

“The averments herein are denied. The Constitution and law clearly provides for my appointment,” said Justice Ziyambi.

Mr Zibani is challenging the constitutionality of a Supreme Court bench that validated Judicial Service Commission’s process of conducting public interviews to select the country’s new Chief Justice.

The application was filed by Venturas and Samukange Legal Practitioners.

President Mugabe, Vice President Mnangagwa, Rtd CJ Chidyausiku and Justice Ziyambi were listed as respondents in the fresh application.

Mr Zibani argued that the Constitution states that only people below 70 years can be appointed judges.

Since Justice Ziyambi retired after turning 70, her recalling to sit as the third judge in the JSC appeal, Mr Zibani argued, was unconstitutional.

Mr Zibani stated in his affidavit that the Chief Justice acted unlawfully in appointing Justice Ziyambi.

Mr Zibani argued that the court was not properly constituted because only two qualified judges, Justices Ben Hlatshwayo and Bharat Patel, sat for the matter when the Supreme Court requires at least three judges.

Chief Justice Chidyausiku, through a letter dated February 6 2017, appointed Justice Ziyambi as Acting Judge of both the Supreme and Constitutional Court for a year.

“This minute serves to advise you that I hereby appoint you an Acting Judge of the Constitutional Court of Zimbabwe with effect from 06 February 2017 to 05 February 2018.

“The appointment is made in terms of Section 166 (2) of the Constitution of Zimbabwe.

“This minute also serves to advise you that I hereby appoint you an Acting judge of the Supreme Court of Zimbabwe with effect from February 6 2017 to February 5 2018.

“The appointment is made in terms of Section 168 0f the Constitution of Zimbabwe,” reads the letter.

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  • MUTASAWAKAROKA

    Why bother us with the Constitutionality or otherwise of the appointment of a tired and retired Judge as if we have a shortage of Judges in this country? The Chief Justice should just have looked for a serving High Court Judge who qualifies to be a Supreme Court Judge unless he had some personal interest in the outcome of the case. Or maybe he has also contracted the Mugabe disease that only the First Who*e or the Corpse are capable.

  • XXXXXX

    Why worry about not complying with the Constitution in this matter when the very same Constitution is not applied in the majority of cases such as the the creation of Provincial Councils among other things.

  • Cetshwayo

    I am sure this is Lacoste talking because they once retired him before his time only to be restated b Mgabe

  • Tom

    I am no legal brain but my understanding of this matter is that judges are normally appointed for life hence the reference to retired judge so and so meaning they still retain the title. Justices are sworn in by the president upon appointment.The question is how often are they sworn in? The sections of the constitution upon which the chief justice appointed Ziyambi are mute with regards to swearing in. How do u swear in a judge who was sworn and is working as an acting judge? I think Ed is messing around.Politics and games these people play

  • Ton van Der Parker

    Who is sponsoring this Zibani? He must concentrate on his law studies and stop being used.