The succession war raging in the ruling ZANU-PF party is set to shift to the third arm of government — the judiciary — as factions try to influence the choice of the candidate that will replace the country’s top judge, Chief Justice Godfrey Chidyausiku, who is set to retire at the mandatory age of 70 in less than a year.
A fortnight ago, the Judicial Services Commission (JSC) started inviting nominations to fill in positions of four Supreme Court judges and eight High Court judges, a development that creates a bigger pool from which Chidyausiku’s successor could be chosen.
This would be the second round of appointments inside a year following another one in September last year, when three High Court judges were upgraded to the Supreme Court bench, while another six were appointed to the High Court.
Chidyausiku was born on February 23, 1947 and will turn 70 years in February 2017, which will seal his fate in terms of the country’s laws.
Zimbabwe’s judges must retire at 65 years, but if they can demonstrate good mental and physical health certified by a medical doctor, they could stay on until they are 70 years old, after which no extension is possible.
Since last year, Chidyausiku has been downgrading his duties, stepping aside from the Supreme Court bench, hearing constitutional cases only.
The Chief Justice’s position is strategic, being head of the judiciary, one of the three pillars that, together with the Executive and the legislature, constitute the State.
What makes the position a powerful one is that in some cases, the Chief Justice has to make decisions that can have far-reaching effects such as declaring the Head of State unfit to remain in office.
By and large, Chidyausiku has been regarded as a “revolutionary” judge, having earned his stripes by coming out guns blazing in 2001 to make an unprecedented attack on the country’s then chief justice, Antony Gubbay, over the latter’s stance on the emotive land issue.
Shortly after, Chidyausiku was handpicked from his position as judge president of the High Court to become the country’s top judge, leaping over several senior judges that were already habitués of the Supreme Court.
Past tradition indicates that seniority is not a deciding factor in the race for the position.
The first black Chief Justice, Enoch Dumbutshena, was not a senior judge when he was appointed to the post in 1984.
Seven years later, when Gubbay was appointed in 1991, he expressed shock since he did not consider himself to be in the race. The same happened when Chidyausiku was appointed 10 years later in 2001. Among those that could be favourites to land the position are Justices Chinembiri Bhunu, Rita Makarau and George Chiweshe.
There are also veteran Supreme Court judges, who include deputy Chief Justice Luke Malaba, Justice Elizabeth Gwaunza, Justice Vernanda Ziyambi, Justice Paddington Garwe and Justice Ben Hlatshwayo.
Chiweshe (63) is the current judge president of the High Court and he is expected to be one of the judges that would make it to the Supreme Court.
A liberation war hero known by his nom de guerre Yasser Arafat, Chiweshe was deputy to current Zimbabwe Defence Forces Commander, General Constantine Chiwenga, during the liberation war.
Chiweshe is a former chairman of the Zimbabwe Electoral Commission (ZEC) and presided over the disputed 2008 harmonised elections.
For that reason, he has lost sympathisers among the opposition, who believe his role during these elections undermined their chances to defeat President Robert Mugabe and his ruling ZANU-PF party.
Justice Bhunu is another war veteran, largely regarded as a revolutionary judge, who was appointed to the Supreme Court last year.
The country could have its first female Chief Justice in Makarau (56), a jurist who made history by becoming Zimbabwe’s first female judge president of the High Court in 2006.
Makarau currently doubles as the secretary of the JSC and the chairperson of ZEC, where she is regularly engaged in bitter confrontation with opposition party leaders.
Other senior female judges who could make history include Justice Gwaunza (63), Justice Ziyambi (the first female Supreme Court judge), Justice Anne-Mary Gowora and Justice Antonia Guvava.
Section 180 of the Constitution of Zimbabwe sets the procedure to be followed when the chief justice, deputy chief justice, the judge president of the High Court and all other judges are appointed.
In terms of the set procedure, if there is a vacancy for the office of chief justice, the JSC must advertise the position and invite the State President and the public to make nominations.
Thereafter, public interviews of all the prospective candidates should be conducted.
A list of three qualified persons will then be prepared as nominees for the office and will be submitted to the State President.
The President will then appoint one of the nominees as Chief Justice of Zimbabwe.
Legal analysts have since pointed out that the process to pick the country’s Chief Justice would be a political one that would almost certainly be affected by the current factional fights playing out in the ruling ZANU-PF party.
Vice President Emmerson Mnangagwa allegedly leads the Team Lacoste faction that is fighting to take over from President Mugabe and his position as Justice Minister could give him a good head start in the race to influence the choice of the next Chief Justice.
President Mugabe has to make the best pick because once a judge has been appointed, he or she cannot be wantonly dismissed.