Who Will Be The Most Important Judge?
Saved under Legal Affairs, Opinion, SOUTHERN AFRICA, Zimbabwe
Tags: #ElectionPetitionZW #ZimElections2018 #ElectionsZW #ZimDecides2018
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A lot of people have focussed most of their attention on CJ Malaba in this whole Chamisa Presidential Election Court Challenge case . But there is one judge who is likely to emerge as the Kingmaker in this case. Her name is Justice Rita Makarau. My FEAR is Makaru is the one who will be asked to write the Judgement . In Constitutional Court matters one Judge writes the judgement and the others concur or disagree . Not all Judges have the same strength and the bench has a wide composition of skills, competency and experience. Some of the Cc Judges have more strength in family law , some in Human rights and bill of rights , some in Commercial law and some in Electoral law issues. When l looked at the Composition of the CC bench l did not see any Judge who has more Electoral Management Experience than Justice Makarau and l see all Judges agreeing that she be asked to write the Judgement. If Chiweshe was there he would be the favourite to write the judgement . But he is not there saka all eyes are on Makarau . Expect even more questions from Makarau during the hearing .
The reason why am afraid is because l dont think she resigned from Zec voluntarily. I have a feeling she found the environment unpleasant for her after Mugabe ouster and certainly she may decide to come back harshly on those who made her to leave. The reason why the Judge who writes the judgement is important is because rarely do Judges disagree with one of their own . In fact they will try as much as possible to agree with her . The reason why rarely do majority judges disagree with the written judgement is because you have to give reasons to the bench ! So its like you are writing your own judgement. Makarau having an advantage over her fellow Judges she will try as much as possible to be as explicit as possible and leave no room for a disagreement.
Even if she doesnt write the judgement she will be the most instrumental judge in the drafting of the substance of the judgement. Yes some may say she is a woman and therefore her input doesnt matter but at the level of constitutional court hakuna zvekuti mukadzi/ murume. Zvasiyana nekuPolitics. Makarau , as a former zec Boss , will be the one most of the Judges on the bench will look upto for clarity on most of the challenging arguments eg “What constitute a material error ” . As someone who was extensively involved at Zec they would want her to leverage her own experiences on what are the challenging aspects at Zec (whether its Voter registration , counting , collating , tabulating , verifying , Political influenve etc ). She also has greater understanding of the risks involved and where to pin-point them. She also has experiences and even stories to tell other judges about her tenure and what she used to tolerate as a “reasonable error “.
Just to show you how powerful Justice Makarau is ; ndiye naChidyausiku vakapinza Chief Malaba basa rehuChief Justice . She was Executive Secretary of judicial Service Commission and chidyausiku was Chairman and they managed the whole interview process ya Chief Justice malaba right from his nomination and including scoring his marks after the interiews !! So she is not a woman to undermine on this bench. There was a time when there was even friction in 2016 between Justice Ministry (Headed by Mnangagwa) and JSc.The Justice ministry went to court to try and interdict the JsC interviews arguing that the executice was in the process of amending the constitution so that the CJ , deputy Cj and Judge President shld be appointed by President. They argued the interviews shld stop. However Makarau and chidyausiku resisted this and went ahead to recommend Malaba ! Surprisingly their conduct was heavily defended by the then Minister and Politburo member Jonathan moyo and several G40 Kingpins who openly defied Mnangagwa !! THEY DIDNT END THERE , they openly interfered and used their proximity to Mugabe (through Grace) to ignore and publicly emberrass Mnangagwa by going ahead to appoint Malaba as Chief Justice despite a High Court Judgement Judge Charles Hungwe. It was so clear from the way Jsc defied both the Second most powerful man and their own Justice Minister and Vice President Mnangagwa, that Jsc had the backing of a certain Zanu pf faction and mugabe himsef. It was so unprecedented that the even split into the then Lacoste-controlled State media which was now under Mushowe and CHARAMBA the top lacoste members (please read ; www.chronicle.co.zw/justice-hungwe-blasts-jsc ). Its also believed that Justice hungwe is related to Josiah Hungwe , a strong mnangagwa ally ! It was also believed at the time that Mnangagwa favored Judge President Chiweshe to be Chief Justice . Judge President chiweshe is the one who allocate cases to high Court Judges and surprisingly he chose Judge Charles Hungwe , someone believed related to be related to a mnangagwa ally who stands to benefit if Mnangagwa defeated G40 in the control of courts and possibly Courts which were going to be instrumental during the implementation and legalisation of the blue Ocean strategy /Operation Restore Legacy and at times like these when elections are in dispute ! Soo you can see why the judgement was crucial however JsC defied it and its clear someone was backing them in their defiance!
The reason am giving this bckground is so that you understand why this coming Wedneaday ia a very important day for Mnangagwa . it will either destroy him or reinforcing his position. He will be facing both his foes and friends in Court ! The reason why Jonathan Moyo is all over the moon about their prospects of winning the case is premised on how their faction protected , defended and openly advanced the appointment of CJ Malaba . They equally protected Makarau and Chidyausiku from facing a tribunal that was being planned to impeach them for defying a court order ! Just so that you Know Mugabe doesnt finance losers , his confidence in financing chamisa case including their hiring of the most expensive lawyer in South africa silk Jeremy Gauntlett SC is underpinned on their confidence that some of the judges will be sympathetic to their case. In fact Judges all over the World tend to be sympathetix to he who appointed them and thats why in America they have “Conservative Judges ” and “Liberal Judgea” and whoever control the bench has a better advantage ! President Trump’s discriminatory Muslim Travel ban was upheld by the Supreme Court and if you look at all the Judges who ruled in favour of Trump they are all Comservative judges (appointed by republican Presidents ) and those who ruled against Him are Liberal Judges (appointed by Democratic Presidents).
So in my conclusion ;
1) To the extend that Makarau left Zec in peace and she has a cordial relationsip with the Presidency , then ED has an advantage over the case . However my second thought tells me that resigning has never been a good thing for anybody ! Ask Mugabe chaiye he will tell you “l was forced”.
2) To the extend that Chamisa has Mugabe and G40 support then they will obviously have sympathetic judges on their side . whether they will be the majority is what is still to be seen !
Whatever happens on Wedneaday zimbabwe should emerge the winner ! God bless Zimbabwe and my people.
l remain Tichatonga/Againstprof Nzekete makuyana
