The Herald’s 20th December edition carries an embarrassingly unbalanced, inaccurate and misleading article on judicial appointments, complete with factual misrepresentations and associated fictions. The article entitled “New twist to CJ succession” demands a critical review so that its fallacies and falsehoods are exposed. Once highly regarded as a newspaper of record in the early years of independence, The Herald’s stock has fallen in the estimation of many discerning readers in recent years largely due to its bias and highly misleading articles like this particular one.
First, the main headline makes a bare announcement that the public interviews of candidates for the Chief Justice job held last week were a nullity. This false declaration is not backed by any legal or official authority, but it is presented boldly as if it were a fact. An opinion by Jonathan Samkange, an interested party in the proceedings being the lawyer for one of the parties, is elevated into a fact. Until a court of law pronounces that they were null and void, the public interviews process remains valid at law. It was done in accordance with a mandatory and lawful requirement of the Constitution and nothing has been done or said by the courts to demonstrate that it was unlawful. Neither The Herald nor its unnamed sources have the power to pass a declaration of nullity on the proceedings.
Second, The Herald gives the impression that the Executive’s intention to amend the constitution has any relevance to the legality of the public interview process. It suggests that since the JSC knew of the Executive’s intentions, they should not have proceeded with the interviews. In fact, since the Constitution is supreme, the intentions of the Executive have no relevance whatsoever to the legality of the current selection process. A constitutional body cannot just stop a lawful process because it has heard that the government intends to amend the provision. That would set a dangerous precedent.
Third, The Herald says that the JSC acted in contempt of court by proceeding with the interviews after noting an appeal which The Herald presents as invalid. It is not for Samkange or The Herald to make a determination on the validity of the appeal. That is a decision for the court to make and if Samkange and his client are not happy they can approach the court to challenge the validity of the appeal. That battle is not fought in newspapers but in a court of law. Similarly, if there was contempt of court, it is for the court to take action, not for The Herald to make that pronouncement. The fact that Samkange and the unnamed sources are bringing the fight into the newspapers suggests they are struggling to make their case in a court of law.
Fourth, quoting an anonymous source, The Herald says there is no precedent anywhere in the world where the Chief Justice is interviewed. The paper goes on to cite the US and Kenya, among other countries as examples. In the first place, the paper exposes its ignorance of the processes of selecting the Chief Justice in those countries. In the US, the President nominates a candidate who must be confirmed by Senate. In Kenya, the Chief Justice is appointed through a selection process led by their JSC, a process very much similar to ours. The Herald is not only wrong but it peddles falsehoods to support utterly baseless claims. The paper also forgot that nearer to home, South Africa, also conducts a similar interviewing process to select its Chief Justice. A quick Google search would have revealed these facts to The Herald. But why let facts stand in the way of propaganda? Overall, the statement that there is no precedent anywhere in the world where a Chief Justice is interviewed is completely incorrect, false and misleading.
Fifth, the Herald also peddles the false impression that under the current Zimbabwean procedure the Chief Justice is appointed by the JSC and not by the President. This is not true. The correct position, which The Herald is obfuscating by its shameless propaganda, is that the Chief Justice is appointed by President from a list submitted by the JSC after public interviews. As I have already stated, there are similar processes in South Africa and Kenya. There is a reason for these processes – it improves transparency and checks and balances in the judicial appointments process, all noble and progressive goals.
Sixth and more embarrassingly, The Herald comes up with the following line, “In the United States of America, the President-elect appoints his own bench”. This, of course, is utter nonsense. The President-elect does not have formal powers, let alone, the power to appoint judges. Where The Herald gets the idea that the President-elect can appoint “his own bench” is a total mystery which can’t be solved. Second, even as President, he does not sack the existing Supreme Court judges and replace them with a new set of his own as The Herald’s statement implies. US Supreme Court Justices are appointed or life. The President can only nominate a candidate when a vacancy arises. And even then, his choice must be confirmed by Senate. President Obama failed to get his nominee to the Supreme Court appointed because he was frustrated by the Republican-dominated system. Trump has a better chance to have his nominee confirmed because the Republicans control the system. However, The Herald is not shamed to print the lie that the President–elect appoints his own bench, misinforming the public.
Seventh, The Herald says the judicial appointments provision is an MDC clause, quoting an anonymous source. I have already addressed this issue in a previous piece, arguing that it is a myth being peddled by desperate elements in ZANU PF keen to support their inane amendment. Suffice to say the MDC had a bolder and more robust provision, which required approval judicial candidates by Senate. ZANU PF rejected it in favour of the current provision. In any event, that clause was approved by more than 94% of the voters who approved the constitution in March 2013. It’s not an MDC clause but a people’s clause. The story lacks balance. The paper quotes an anonymous source yet the people from all parties who participated in the writing of the Constitution are available. It reads like a hatchet job intended to shore up support for an inane amendment. The only way to strengthen its appeal among ZANU PF MPs is to label in an MDC provision. As they say, if you want to kill a dog, just give it a bad name. To justify amending the judicial appointments clause, they must label it an MDC clause.
Overall, The Herald’s story is a complete disgrace. It misinforms and misleads. It falls into the Trump-like “post-truth” category of politics, in which there is no regard whatsoever for the truth. One can lie openly, without any sense of shame, in order to manipulate public opinion. In this article, The Herald created numerous fictions. It wasn’t out of mere ignorance. This is a deliberate, systematic process of manipulating facts designed to meet a political end. It is one thing to give a different opinion on an issue, but for a public newspaper to manufacture deliberate lies and cast them as news and analysis is a new low.
But this is likely to be a common pattern in the months leading up to 2018 and opposition civil society and media reviewers must be vigilant. There is nothing good to report on from the state and ZANU PF since 2013 that the only way to sell the party and its ageing candidate is to engage in post-truth tactics, as we have seen in that article.