ROMEO Zibani looks like your typical local university student.
BY OBEY MANAYITI
Clad in a promotional t-shirt for a company he worked for sometime in 2008, Zibani insisted that his interview with The Standard should be short as he was in a hurry to return to the University of Zimbabwe (UZ) in time for the affordable meal at the dining hall.
Zibani grabbed headlines last December when he approached the High Court seeking to stop interviews being conducted by the Judicial Services Commission (JSC) to select then outgoing chief justice George Chidyausiku’s successor.
The UZ student set tongues wagging when he hired one of the best legal minds in Zimbabwe, Jonathan Samkange to fight his case.
Speculation about his real intentions and source of funds for the legal fees heighted after Vice-President Emmerson Mnangagwa filed an affidavit at the High Court supporting Zibani ‘s case.
However, the aspiring lawyer still does not understand what the hullaballoo was all about. Zibani claimed that his aunt who is based in South Africa sponsored his legal fight.
In his unsuccessful application, the student lawyer wanted the JSC barred from conducting the interviews to select the new chief justice.
Zibani scored a temporary victory when the High Court ruled that the interviews should not be held, but the JSC went ahead before successfully challenging the ruling in the Supreme Court.
Mnangagwa also tried to stop the interviews, saying the executive was already working on amendments to the Constitution that would give President Robert Mugabe the sole right to appoint the country’s top judges.
Zibani went as far as the Constitutional Court to halt the process.
However, the manoeuvres were rendered academic last week when Mugabe appointed deputy chief justice Luke Malaba the new chief justice.
Malaba, a respected judicial officer, will be sworn in this week, ending months of high drama.
“I launched this application just out of interest. I have an interest in constitutional jurisdiction,” Zibani said.
“I love it and I can tell you now that there are some provisions in the Constitution that I think must not be there, for example the provision which allows judges of the Supreme Court to sit as judges of the Constitutional Court.”
Zibani added; “It means that if you are aggrieved by the decision of the Supreme Court, you can appeal to the ConCourt but some of the judges who presided at the Supreme Court will sit to hear your case at the ConCourt. What will make them change their line of thinking?
“We also have some clauses like the right to food and then it says the state should take all measures within the resources they have.
“That is limiting the liability of the state. You cannot approach the court and say the state has failed to give us food because the defence will be simple, that we don’t have the resources.
“This is because they are told to act within the available resources.”
Zibani grew up in Mudzi South, Mashonaland East where he attended different schools while staying with his grandmother.
After completing his O’ Level, he went to Marondera in 2008 where he started his working career first at a bread making company and then a cooking oil making firm where his father used to work.
He went back to school in 2011 to do his A’ Levels and came out with 15 points. He enrolled at the UZ to study law.
Zibani said some clauses in the Constitution must be tested.
He said he drew his inspiration from his lecturer Lovemore Madhuku and his lawyer Samkange.
“The person who taught me constitutional law is just good,” he said.
“He is Professor Lovemore Madhuku and that is when I enjoyed constitutionalism.
“I also think that besides the constitutional provisions, there are higher principles such as fairness and transparency which are not there in the Constitution but are necessary,” Zibani added.
“Lovemore Madhuku is my role model in Zimbabwe, as well as my MP Jonathan Samkange.
“I have seen him [Samkange] arguing cases, big for that matter, and win.
“Madhuku is my role model in as far as constitutionalism is concerned but when it comes to confidence and guts, Samkange is my role model.”
He said after mooting the idea of making the challenge, he approached about three smaller law firms but they all turned him down.
“I approached three law firms, smaller though because the big firms were going to charge me a lot and none was willing to take my case,” Zibani says.
“I later approached Samkange and his charges were reasonable and said I could pay through installments.
“My aunt is paying some costs but she cannot afford the colossal amount that some big lawyers charge.
“The reason why Samkange took the case is that we know each other and he is my MP and he knows me personally.”
Zibani said he was happy with the way his case has been going despite a big setback at the Supreme Court and Constitutional Court.
He also challenged the appointment of retired Justice Vernanda Ziyambi to hear his case at the Supreme Court.
He said he found it problematic that some members of the JSC interviewed their bosses who were eyeing the chief justice’s post.
“Members of the JSC were interviewing fellow members of the JSC who are senior to them and in the event that one of them is given the job, he or she will be more senior,” he said.
“What was ideal is to hire judges from outside the country to conduct the interviews, or we can hire retired judges to make those interviews because that way we can do away with compromise.”
He said the JSC panellists could be biased because of their relationship with the candidates..
“The third option is to allow the president to appoint the chief justice after consulting the JSC,” he said.
“We want to make this clear and that is why we are not just saying the president must appoint.
“He must consult and we are not saying let’s remove the JSC completely from the picture. That is the practice in a number of jurisdictions,” Zibani said.
Zibani said he was not moved by claims that he was being used as a pawn by politicians such as Mnangagwa.
“The fact that the minister of Justice agreed with me does not necessarily mean my application was politically motivated,” he said.
“For those people who are saying my application is politically motivated, I can only say to them that if you see politics before law then obviously you will see politics everywhere.
“When I said the president should appoint, I was referring to the office. Of course today it is Mugabe but you will never know in future.”
He said Zimbabweans viewed everything with a political lense.
“Today even if you make any application saying I want things to be done this way, there are some people who will say you are sponsored by MDC or you are sponsored by Zanu PF,” Zibani said.
“We always see politics and even the jokes on WhatsApp are political.”
He said after finishing his studies, he would like to join private practice and start arguing and winning big cases. Zibani does not rule out joining politics at some stage.
“What I can tell you is that you cannot divorce politics from law but for now I don’t have intentions to join politics,” he said.
“What I know for certain is that if you become big, you might want power.
“That is the reality. I cannot rule out that but what I can say is that I don’t know. I might become a politician. I am not in student politics.”
One of his classmates, Wishes Nziradzemhuka described Zibani as a kind and brave person.
“He is a kind person who is committed to what he will be doing,” he said.
“I am visually impaired so he has been my helper for the past three years and so far I haven’t seen anything bad about him.
“His court application started as an academic debate based on the legal provisions we have so far.
“We discussed it and the first thing I was concerned about when he talked about this issue was separation of powers.”
Nziradzemhuka said Zibani was also suggesting that if funds permitted, judges must be appointed from other jurisdictions.
Another UZ student, Zivanai Mhetu said although Zibani was not involved in student politics, he was brave.
“To me and from my interactions with him, he is quite brave. I am not surprised by the nature of application he did,” he said.
“I’m in the student representative council and I have not heard of his ambitions but he decided to fight in national politics through legal means.
“I don’t have evidence that he is linked to Mnangagwa, or that he is being used by someone.”
Madhuku said he could not comment on Zibani’s case, citing personal reasons. Malaba was selected ahead of JSC secretary Rita Makarau and veteran judge Paddington Garwe.
(See pages 11 and 25 for more stories on the chief justice saga.)