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What Zimbabwe MPs said about the Constitution Amendment Bill- Part Six

Thereafter, there is no obligation; Section 339 makes it very clear that there is no obligation on the person who is consulting to take the advice or recommendation of the body so consulted.  So, what it means, Mr. Chairman is that the Judicial Services Commission has no power whatsoever; they are simply being asked to give their opinion.  Whatever opinion that they give, it is irrelevant if the person who is doing the consultation does not take into account that recommendation or advice which is given.

I want all Hon. Members to think very carefully whether this is what we want when it comes to the appointment of the top judicial officer in the land who happens to be the Chief Justice.  We must look at the power of the Chief Justice as provided for in our Constitution.  Let us also look at the power of the Judge President as provided for in our Constitution and ask ourselves this very simple question; is this the power that we want to vest in one individual?  I know from discussions that I had with Members across the political divide that in their hearts of hearts, there are Hon. Members who are sitting opposite who have got misgivings, reservations and some who are totally opposed to this Bill.  I want to say for a fact, it is unfortunate.

The Hon. Vice President of the Movement for Democratic Change raised a very fundamental point, that this is perhaps one instance where we have got to look seriously at the provisions of our Standing Orders and consider the issue of voting in respect of this Bill, by secret ballot.  I want to ask my colleagues, especially those who are seated on your right, to reflect upon what I am saying and in their own caucus, in our absence, deliberate seriously about the import of this clause if you look at the further provisions.

I want to agree with Hon. Ziyambi Ziyambi, who raised a very fundamental point that we have a scenario where you are saying yes, the Judicial Service Commission may disagree with the President and if the President is to make an appointment, which is not consistent with the recommendation of the Judicial Service Commission, then the President must inform the Senate.  It goes further and says that, ‘provided that for the avoidance of doubt, it is declared that the decision of the President as to such appointment shall be final.’  At the end of the day, why are we seeking the opinion of the Judicial Service Commission if we are not going to be bound by its recommendation?

We are looking at a Judicial Service Commission, the majority of whose members are appointed by the President.  Look at the composition, apart from the three lawyers nominated by the Law Society and the teacher of law by the lecturers and perhaps the public accountant.  If you look at the Chairperson of the Public Service Commission, effectively, that is an appointee of the President.  If you look at the Judge President, he or she will be an appointee of the President.  If you look at the Chief Justice, that will be an appointee of the President.  The Deputy Chief Justice, is the appointee, so at the end of the day, we are having a body, the majority of whose members are actually composed of people who are appointed by the very same President.  So, why do you want to consult them if you are not going to take into account the advice that they are going to give?

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