Why Mugabe has it easy in the selection of Judges, and why the Herald is wrong

Yesterday’s article in the Herald sparked a lot of discussion on social media as people felt the state-controlled newspaper had gone a bit too far, or further than usual in distorting facts.  The Herald even had the audacity of saying that in Zimbabwe, the President’s powers were being limited unlike in the United States of America where the president can choose his own bench.  This could not be further from the truth.  This article is meant to debunk the false assertion being propagated by the Herald.

The Herald claimed that Chief Justice Godfrey Chidyausiku was privy to the Executive’s intention to amend the Constitution, but proceeded with the interviews. However, Article 2 of the Constitution reads

This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.

Accordingly, the constitution cannot be disregarded just because the executive has expressed their wish to change it.  Until the constitution has been amended, every ruling must be made in accordance with the constitution.  It is the supreme law of the land and cannot be disregarded in any circumstance.

The Herald claimed that

In the United States of America the President-elect appoints his own bench.

The truth

The President nominates someone for a vacancy on the Court and the Senate votes to confirm the nominee, which requires a simple majority. In this way, both the Executive and Legislative Branches of the federal government have a voice in the composition of the Supreme Court.

However, it should be noted that before the Senate votes on the President’s nominees the hold hearings, where the nominee is interviewed by the United States Senate Judiciary Committee.   This is much like the JSC interviews.  However, the key difference is that the Senate Judiciary Committee votes on whether to send the nomination to the full senate for a vote.

In rare cases, the Senate can frustrate the President and refuse to hold confirmation hearings meaning that the President’s choice will be totally disregarded.  This happened to President Barack Obama when he nominated Merrick Garland for the Supreme Court in 2016.  The Senate Republicans refused to hold any confirmation hearings.

Even if the Senate Judiciary Committee holds confirmation hearings and votes to send the nomination to the full senate, the President’s nominee can still be rejected by the Senate.  When Justice Lewis Powell retired from the Supreme Court in 1987, President Ronald Reagan nominated Robert Bork to replace him. Bork was qualified and competent appellate court judge, but some of his views were deemed as too conservative. This resulted in a fierce fight to block him by the Democrats.  In the end, Roger Bork’s nomination was rejected by a full Senate vote of 58-42 against. President Ronald Reagan had to nominate another justice and this time, learning from his previous mistake, Reagan nominated Anthony Kennedy.  Kennedy who would go on to be confirmed with a vote of 97-0.  Robert Bork felt so aggrieved by the way he had been treated in the confirmation hearings that he resigned his appellate court judgeship in 1988.

Not only is the Herald wrong about how the US process works, it is also wrong about the amount of power Mugabe wields.  Based on the above, it’s quite clear that the Zimbabwean President has so much power in the selection of judges, that it should be beneath him or any member of the executive to engage in the chicanery of trying to amend the constitution.  After all at the end of the day, Mugabe still gets to pick the next Chief Justice, albeit from a narrower pool.

For a more detailed analysis, please refer to Professor Alex  Magaisa’s blog here.