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| Procession of Judges led by Chief Justice Chidyausiku (as he then was) |
Introduction
This article provides an
overview of the tangled political machinations that have taken place in
relation to the appointment of a new Chief Justice of the Republic of Zimbabwe.
It draws from comments made by various organizations and individuals and
compares the mooted constitutional amendment bill with regional and
international standards.
The most senior member of the
judiciary, the Chief Justice, must be appointed purely on merit and this
appointment must not be influenced by political considerations. It is therefore
highly regrettable that there appear to have been political manipulation to try
to influence this process. This could have extremely damaging consequences for
the integrity and independence of the judiciary in Zimbabwe.
Chief Justice Godfrey Chidyausiku
reached the compulsory retirement age of 70 at the end of February 2017. Before he was due to
retire, a process was initiated to appoint his replacement.
The
Constitutional Provisions
Section 180 of the
Constitution of Zimbabwe provides for the appointment of the Chief Justice. The Judicial Service
Commission is required to advertise the position, invite the President and the
public to make nominations, and conduct public interviews of prospective
candidates. It must then prepare a list of three qualified persons as nominees
and submit this list to the President. The President must appoint one of these
nominees as Chief Justice, but if the President considers that none of the
nominees are suitable for appointment, he must require the Judicial Service
Commission to submit a further list of three qualified persons, whereupon the
President must appoint one of the nominees to the position.
Relying on these provisions, the Judicial Service Commission
called for the nomination of candidates in October 2016. Four candidates were
nominated and they were due to be interviewed on 12 December 2016.
Developments
Prior to Interviews
Prior to the interviews and
cognizant that these new appointment procedures might cause some problems,
Chief Justice Godfrey Chidyausiku alerted the Executive about his concerns. As
he did not receive a response, he inferred that the Executive was comfortable
with the new procedures. The Judicial Service
Commission then proceeded to call for nominations and, thereafter, set the date
for the interviews.
A few days before the
interviews were due to commence, the Chief Justice says he was surprised to
receive a communication informing him that an Executive order had been issued
to stop the selection process. The Chief Justice says he responded by advising
that the Executive’s directive could not be complied with without violating the
Constitution and, as such; the interviews would proceed in terms of the
Constitution. The Chief Justice says that he later ascertained that the President
had not issued the alleged Executive order to stop the interviews. Regarding the media
coverage of this matter, the Chief Justice had this to say:
“Ever since adopting our
stance to abide by the Constitution, a segment of the media has sought to
impugn the integrity of the Judicial Service Commission. This is most regrettable.
This is all I wish to say on this unfortunate debate. In this regard, I am
inspired by Michelle Obama’s words of wisdom, ‘When your detractors go low, you
go higher’. You do not follow them into the gutter.”
Five days prior to the date scheduled for the interviews, a law
student, Mr Romeo Taombera Zibani, launched an application before the High
Court seeking an interdict to stop the interviews from being held.
The Applicant’s Arguments
The applicant argued that the process for appointing the Chief
Justice mandated by section 180 of the Constitution was itself unconstitutional
and ought to be amended. He asserted that the selection process violated the founding
values of transparency and accountability in the Constitution because it
created the possibility of biased decisions and could be seen as being incestuous. Justice Rita Makarau, one
of the applicants for the post, was (and remains) the secretary to the Judicial
Service Commission. The other applicants for the post, Deputy Chief Justice
Luke Malaba, Justice Paddington Garwe and Justice President George Chiweshe all
report to the Chief Justice who chairs the selection panel.
The Affidavit from the Ministry
The Minister of Justice was one of the respondents in the case. An
affidavit was placed before the court by the Ministry’s permanent secretary on
behalf of the Minister. The affidavit deposed to the fact that there was an
intention to amend section 180 to allow the President to decide himself who
should be appointed as Chief Justice without any process of public interviews.
This proposed change was to be canvassed with the public. Annexed to the
affidavit was a draft amendment to section 180 of the Constitution and a draft
memorandum addressed to Cabinet highlighting the principles of the proposed
amendment.
Conspicuously, the memorandum did not bear the Minister’s signature.
The Judgment
Justice Charles Hungwe granted the interdict to stop the
interviews for the Chief Justice from taking place. The judgment in this case is Zibani v Judicial Service Commission &
Others High Court Harare Case Number 797 of 2017. Whilst agreeing that the process in section 180 was lawful, the Judge
decided it was contrary to the constitutional values of transparency and
accountability and was therefore unconstitutional. Upholding the Constitution
ahead of an expressed intention by the Executive to amend section 180 would, he
said, constitute “slavish adherence” to the Constitution. He held that the
Judicial Service Commission is also accountable to politicians in the Executive
and their expressed intention to amend the law had to be respected. Following
the process presently mandated by the Constitution would thus, according to his
judgment, amount to a threat to the independence of the judiciary. He said:
“It occurs to me that where
a lawful process leads to an absurd result, in that sense that colleagues
select each other for entitlement to public office, as argued by the applicant,
it cannot be sanctioned on the ground that it is provided for in the law. Such
an approach is irrational.”
This judgment is palpably wrong and has some very dangerous
implications. It is completely at variance with the basic principles of
independence of the judiciary, the separation of powers and the supremacy of
the Constitution. It not only offends against the rule of law, but also threatens
the proper administration of justice.
Section 180 of the Constitution sets out the process to be
followed in the appointment of judges. This procedure was introduced by the
Constitution of Zimbabwe (2013) to enhance transparency and accountability in appointing
judges, including the Chief Justice. The Judicial Service
Commission has a duty in terms of section 191 of the Constitution to conduct
its business in a fair, just and transparent manner. Further, in terms of
Section 324 of the Constitution, all constitutional obligations must be
performed diligently and without delay. Thus, there was a clear and incontrovertible duty on the Judicial
Service Commission to conduct the interview process and to do so without delay.
These constitutional provisions notwithstanding, Justice Hungwe found that the
process which the Commission intended to follow was unconstitutional.
The finding by the judge that the selection process is
unconstitutional is legally untenable. The Constitution is supreme law of the
country and any law, practice, custom or policy which is inconsistent to the
Constitution is, to the extent of the inconsistency, invalid. Judges are the guardians
of the Constitution and are sworn to uphold it. The Judicial Service
Commission is thus obliged to follow the process provided for in section 180. It
was entirely wrong for Justice Hungwe to interdict and stop a lawful
constitutional process on the basis of concerns of a private individual about
the nature of the process or indeed on the basis of an unsigned communication of
the intention to amend section 180 of the Constitution. Stated intentions to
amend laws cannot be the basis for not obeying them – this is an abrogation of
the rule of law.
There is no provision in the Constitution which would allow a
court to declare as unconstitutional a provision in the Constitution. It is a
trite rule of statutory interpretation that a statute is interpreted in favour
of internal consistency, more so when that law is a constitution whose
provisions are presumed to be mutually consistent. If a constitutional
provision turns out to be ill-considered or to have unacceptable consequences,
the only recourse is for the Executive to propose that the provision be amended
and to go through the required Parliamentary process of amendment.
Renowned academic Alex Magaisa
has this to say about Judge Hungwe’s ruling;
“The implication of Justice
Hungwe’s reasoning is that if any citizen does not like a constitutional clause
which requires a constitutional body to do something, they can go to court to
stop the constitutional body from carrying out its mandate and the court can
order the Executive or Parliament to amend the Constitution. Meanwhile, the
Constitution is put in abeyance, pending the fulfilment of the litigant’s
desires. It negates the basic principle that the Constitution, however
objectionable it might be, is supreme. It also breeds uncertainty and
confusion.
If Justice Hungwe’s reasoning
were to be followed, it would allow constitutional bodies to disobey the
Constitution arguing that they are lobbying government to pass a law to change
it. For example, ZEC might refuse to register voters, arguing that they are
waiting for government to process an amendment to the Constitution. Such
reasoning, which Justice Hungwe’s judgment encourages, would be a recipe for
disaster. You could have citizens suing to interdict constitutional bodies for
all manner of reasons, the ultimate end of which is to stop them from carrying
out their constitutional mandate. A constitutional democracy does not work like
that. It prioritises the constitution above all else.”
Veritas provided the following
trenchant comment on the Hungwe judgment:
“The Constitution is the
supreme law and the Judicial Service Commission must obey it. The argument that
section 180 is unconstitutional verges on nonsense. The Constitution is an
integral whole, and no part of it can be regarded as invalid or unconstitutional.
The fact that the government or a faction within government would like to amend
section 180 cannot justify the Judicial Service Commission disregarding it.”
The Holding of Interviews
Immediately after this judgment, the Judicial Service Commission
lodged an appeal which had the effect of suspending the ruling. The Commission then
decided to go ahead with the interviews and they interviewed three judges,
Justices Luke Malaba, Rita Makarau and Paddington Garwe. Justice George Chiweshe
was not interviewed because, although he was invited to the interview, he did
not attend.
The Supreme Court Appeal Decision
In a unanimous verdict, the Supreme Court allowed the appeal filed
by the Judicial Service Commission on 13 February 2017 and set aside the
interdict imposed by Justice Hungwe. The Supreme Court ruled
that the Judicial Service Commission had acted lawfully by following the
process currently provided for in the Constitution. The executive’s plans to amend
the present constitutional provisions did not in any way affect the finding of
the Supreme Court as the proposed constitutional amendment might not even be
passed. Thus, the entirely flawed
basis for the decision by Justice Hungwe was emphatically rejected.
Alex Magaisa alleges that there was more
political gamesmanship at the Supreme Court hearing. According to him, the
failure by Mr Zibani’s lawyers to follow the elementary requirement to submit
heads of argument and the subsequent request for postponement at the hearing is
evidence of attempts to delay the hearing so the constitutional amendment is
enacted ahead of further judicial scrutiny.
Application to the Constitutional Court
Following the decision by the Supreme
Court, Mr Romeo Taombera Zibani applied to the Constitutional Court for an
order setting aside the Supreme Court’s judgment on the ground that the
appointment of retired Judge, Vernanda Ziyambi, to preside in the appeal was
unconstitutional. The second respondent,
the Minister of Justice, raised the additional issue of the possible failure by
Justice Ziyambi to take the oath of office.
“I
do not take issue with the averments made by the applicant in paragraphs 1 to 8
of his founding affidavit. However, I believe third respondent did not comply
with the peremptory provisions of Section 185 (2) of the Constitution. The
peremptory provisions of Section 185 (2) of the Constitution require that a
judge takes the oath of office upon appointment. My belief is premised on the
fact that the letter of appointment of the fourth respondent, which I also
received, makes no mention of that issue.”
Veritas have pointed to Section
186(3) of the Constitution which precludes compulsory retirement at the age of
70 for judges appointed in an acting capacity.
“It
was always accepted that under the equivalent provisions of the former
constitution, retired judges could be called on to serve on the Bench when
necessary. Indeed the conditions of service of judges require them to
undertake such service when asked to do so, failing which they will not be paid
their pensions.”
This matter remains pending before the Constitutional Court.
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| (from left) Chief Justice Godfey Chidyausiku (as he then was), Vice President Emmerson Mnangagwa, Senate President Edna Madzongwe and Judicial Service Commission Secretary Justice Rita Makarau at an Anti Corruption event at Harare Magistrates' Court on 5 February 2016 |
The Political Context
There is speculation that the factional fighting within ZANU PF
underlies the development (and possible denouement) of this matter. According to this notion,
the Vice President in charge of the Justice Ministry prefers the appointment of
Justice Chiweshe as Chief Justice because he is sympathetic to the Vice
President’s faction. Thus, in any litigation involving
a challenge to the presidency after the current president ceases to be the
incumbent, Justice Chiweshe would lean in favour of the current Vice President.
On the other hand, at least some of the other three nominees are allegedly sympathetic
to the other ZANU PF faction. According to this theory,
the proposed change to section 180 to give the President the sole discretion in
appointing the Chief Justice is to enable the President to appoint Justice Chiweshe
who has a liberation war background and strong ties with the military. It is further speculated
that Justice Chiweshe did not attend the public interviews because he might not
be recommended for appointment by the panel. Some reports suggest he might have
been aware that the amendment of section 180 was imminent and he would stand a
better chance of appointment if the decision rested solely with the President;
whilst the other reason proffered for his absence was the ruling by Justice
Hungwe halting the interview process.
All of this is pure speculation. However, any veracity in relation
to these claims would bode ill for the integrity and independence of the
judiciary as it would be symptomatic of an attempt to politically influence the
judicial appointment process. Alex Magaisa maintains:
“What is clear from this case is
that the process of appointing the Chief Justice has been the subject of
political gamesmanship within the context of ZANU PF’s succession politics.
While Zibani, the litigant who tried to stop the interviews is a private
citizen, there is much to suggest that
he was not a lone ranger, but that he was, in fact, a proxy of a political
faction which is pushing for a particular candidate to take over as Chief
Justice. It is hardly a coincidence that Romeo Zibani submitted his application
at the same time that the Ministry of Justice was also crafting an amendment to
the process of appointing a Chief Justice and that the Ministry had no interest
in opposing Zibani’s application. On the contrary, the Ministry of Justice
seemed to be quite happy with Zibani’s application, instead of defending the
existing provisions of the Constitution, as it is legally obliged to do. It
curiously gave precedence to a proposed constitutional amendment, ahead of an
existing and valid provision of the Constitution.”
Veritas had this to say:
“It is most unfortunate that
the appointment of the new Chief Justice seems to have fallen prey to political
factionalism. Even the appearance of political involvement in the appointment
process diminishes the authority and prestige that should attach to the office.
It is to be hoped that whoever finally becomes Chief Justice will be able to
reassert the independence of his or her office and the judiciary as a whole.”
Independence of the Judiciary
Judicial independence is
vitally important for the fair administration of justice and for the upholding
of the rule of law. Three reasons were
advanced by former U.S. Solicitor General, Archibald Cox, for judicial
independence:
1.
To
guard against abuse of executive power;
2.
To
halt legislative erosion of fundamental human rights, and
3.
To
provide assurances to the public that judges are impartial and fair in their
decision-making processes.
The scholars James Melton and
Tom Ginsburg note that two thirds of all constitutions written since 1985
include at least two of the six constitutional features identified as enhancing
judicial independence.This is a marked
progression from the pre-1985 period in which 60% of constitutions either
contained only one of these features or none at all. As of 2017, 77% of all
constitutions contained a statement requiring judicial independence. This normative consensus
is reflected in Zimbabwe’s Constitution which states that judicial independence
is central to the rule of law and good governance. Further, the courts are
subject only to the constitution and the law.
Whilst necessary, statements of
judicial independence are insufficient drivers for actual independence. Some
scholars opine that the formal provision for judicial independence, de jure independence, is the most
important determinant for actual, de
facto, independence. However, Melton and
Ginsburg express skepticism regarding this claim since the marked increase in de jure independence has not had a
concordant rise in de facto
independence.
They make the seminal inquiry regarding textual drivers for and supporters of
judicial independence. It is their finding that,
even though the popular zeitgeist is to have a constitutional statement of
judicial independence, different countries will have different levels of demand
for judicial independence ranging from the nominal to the radical.
To illustrate, a country
could require judicial independence in the constitution but give all powers of
nomination and appointment to the executive, thereby undermining actual
independence. This is important since the view has been expressed by the
official in charge of the Ministry of Justice, Legal and Parliamentary Affairs
claiming that the proposed amendment has no effect on judicial independence
since the provisions relating to judicial independence remain unaltered: “So,
the amendment is to deal with the issues of procedures. It does not derogate
anything concerning independent of the judiciary. Independence of the judiciary
is guaranteed in the Constitution. We are not tempering with that. I wanted
that to be clear.” This claim cannot be
sustained since judicial independence is the result of a number of
constitutional features. As noted above, Melton and Ginsburg draw on various
studies to identify six central constitutional features which enhance judicial
independence.
These are:
1.
Statement
of Judicial Independence;
2.
Judicial
Tenure;
3.
Selection
Procedure;
4.
Removal
Procedure;
5.
Limited
Removal Conditions;
Judicial Appointment Procedures
– Normative Claims
Thus, there are other constitutional
and legal provisions which enhance judicial independence, key for this analysis
being the selection procedure. Judicial appointment is a crucial mechanism to
enhance judicial independence as “Judges who are dependent in some way on the
person who appoints them may not be relied upon to deliver neutral,
high-quality decisions, and so undermine the legitimacy of the legal system as
a whole.”
Provisions on judicial independence which provide for multiple bodies to be
involved in appointment, promotion or removal of judges enhance actual independence
as other actors can retaliate and increase the political cost of ignoring the
constitutional text. As noted by Melton and
Ginsburg:
“Ceteris paribus, textual promises will facilitate enforcement to
the extent that they raise the visibility of judicial independence or designate
multiple officials to be involved in the institutional processes related to the
judiciary.”
For this reason, they note
that the use of judicial councils in judicial appointments enhances judicial
independence.
There are other reasons for
supporting the use of judicial councils/commissions in judicial appointment
processes.
Regional and international instruments implore the need to ensure transparency
in appointment of judicial officers. The African Principles and Guidelines on
the Right to a Fair Trial provide as follows:
“The process for appointments
to judicial bodies shall be transparent and accountable and the establishment
of an independent body for this purpose is encouraged. Any method of judicial
selection shall safeguard the independence and impartiality of the judiciary.”
Similarly, the Universal
Declaration on the Independence of Justice (Montreal Declaration) provides
that:
“Judges shall be nominated
and appointed, or elected in accordance with governing constitutional and
statutory provisions which shall, if possible, not confine the power of nomination to governments or make
nomination dependent on nationality.” (emphasis added.)
The Universal Charter of the
Judge also requires judicial appointments to be open and transparent and
encourages that this is done by an independent body with “substantial judicial
representation.”
The ineluctable conclusion is that there is regional and international impetus
for the use of an independent judicial council/commission in the appointment of
judicial officers.
Judicial
Appointment in the Constitution of Zimbabwe
The appointment procedure
provided in the Constitution of Zimbabwe (2013) is a reflection of the
efficacies of multiple-actor driven appointment processes. It is an instance of
constitutional convergence with the Constitution of South Africa which, by and
large, provides for a similar procedure. Some scholars have
concluded that this is an international best practice. This is because it allows
for consultations with a broad range of professionals including accountants,
lawyers, professors and human resource management personnel. There is strong scrutiny
of potential candidates and this ensures appointment of the best qualified
candidates.
It is transparent, open and reduces executive control over the process. It was a welcome
departure from the secretive method of appointment under the former
Constitution as noted by prominent lawyer and academic, Mr Derek Matyszak:
“The manner in which
appointments are to be made under the (then) draft has also been improved and
diminishes Presidential influence in this regard. Rather than the opaque manner
in which the JSC comes to consider prospective candidates which exists under
the (then) current constitution…”
As shown above, this method
of appointment is strongly recommended by regional and international
instruments. For these reasons, the Comparative Constitutions Project (CCP)
gives the Constitution of Zimbabwe a score of four (4) out of six (6) in
respect of judicial independence. This score is higher than
that of inter alia Sweden,
Switzerland, U.S.A., and the United Kingdom. This does not necessarily
support a claim that the judiciary in Zimbabwe is more independent than that of
the U.S.A. or the United Kingdom, but shows the progressive nature of the
constitutional text compared to others.
Provenance
of Section 180 of the Constitution of Zimbabwe (2013)
In his blog post entitled “Five
myths behind ZANU PF’s proposed constitutional amendment,” Alex Magaisa
emphatically denies the claim that section 180 of the Constitution is a clause
proposed by the Movement for Democratic Change (MDC) during the constitution
making process.
Instead, he asserts that the MDC wanted a more rigorous process which required
parliamentary approval of nominations and that all judges re-apply for their
jobs as was done in the Kenyan Constitution Reform Process.
Section 180 of the Constitution therefore represents, according to Magaisa, the
compromise reached by all parties to the constitution-making process in light
of best practices in other jurisdictions, including South Africa.
Judicial
Appointment in Constitution of Zimbabwe Amendment (No.1) Bill
The Government of Zimbabwe published the Constitution of Zimbabwe Amendment
(No. 1) Bill, 2016 (HB 15, 2016) in December of 2016, beginning the formal process of shifting
appointment powers back to being entirely within the whim of the Executive. It seeks to get rid of the
public advertisements and interviews in respect of the three senior positions
of Chief Justice, Deputy Chief Justice and Judge President of the High Court.
These appointments are to be made by the President after consultation with the
Judicial Service Commission. Section 339(2) of the Constitution defines the
phrase “after consultation” as requiring the proffering of views which are not
binding on the appointing authority. Thus, appointment would
be wholly in the hands of the Executive President. Any difference of opinion
between the President and the Judicial Service Commission would require the
Senate to be informed without any effect on his/her sole discretion to appoint
these three judicial officers. This is because there is no provision allowing
the Senate to override a decision by the President which is contrary to the
recommendation of the Judicial Service Commission. The amendment proposes a
return to the provisions of the Lancaster House Constitution (as amended), which
scholars noted was “legally opaque” and only allowed for appointment of persons
acceptable to the government. The process of appointing
the most senior judges would be neither open nor transparent and the amendment
would give even more sweeping powers to an already powerful presidency.
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| The late Dr. Eddison Zvobgo who, as Minister of Justice, Legal and Parliamentary Affairs, proudly introduced the Bill to establish the Executive Presidency |
Presidential
Power and Constitution of Zimbabwe Amendment (No.1) Bill
The scholar Nicolas va de
Walle noted in 2001 that in all constitutional reform processes in Africa, “not
a single democratizing state chose to move to a parliamentary form of
government.”
In the words of renowned constitutional scholar Kwasi Prempeh;
“The presidential form of
government remains the unrivalled favorite of Africa’s constitutional
designers….the contemporary Africa president generally retains within the
constitutional and political orbit the essential attributes of imperium long
associated with presidential power in postcolonial Africa.”
Similarly, the Constitution
of Zimbabwe (2013) retained an all-powerful presidency congruent with H. Kwasi
Prempeh’s concept of the Imperial African Presidency. The president remains the
head of State and government with powers to appoint an unlimited number of
Ministers and dissolve Parliament if it passes a vote of no confidence or
refuses to pass the national budget. A notable exception was
the new section 180 which, as noted above, was largely welcomed since it
espoused judicial independence and accountability. In seeking to remove this
provision, the executive intends to restore presidential monopoly over judicial
appointments in respect of the three most senior members of the bench. The
pitfalls of such an approach are self-evident:
“Persistent presidential
monopoly of policy initiative continues to impoverish policymaking in Africa,
because its practical import is to confine to a single perspective—the
president’s—the range of possible solutions to any given societal problem.”
The use of constitutional
amendments to give more discretionary powers to the President is not without
precedent. Then Minister of Justice, Legal and Parliamentary Affairs, Dr
Eddison Zvobgo, famously articulated his pride and “privilege” in introducing
the bill which abolished the positions of Prime Minister and ceremonial
President in lieu of the all-powerful
Executive Presidency. It was widely believed
that Dr Zvobgo crafted these provisions with the hope of succeeding Mugabe as
President.
He would later complain about President Mugabe’s failure to step down and hand
over power.
The current official in charge of the Ministry of Justice, Legal and
Parliamentary Affairs has been similarly fervid in his views regarding Constitution
of Zimbabwe Amendment (No.1) Bill; going as far as to claim that the Head of
State is above all branches of government and in that lofty capacity, must not
only choose the Chief Justice, but the Speaker of Parliament as well: “We have one
person who is above the executive, the judiciary and the legislature – the Head
of State. So when he exercises his powers to appoint the Speaker, Chief Justice
– he does that as Head of State…”
Needless to state that this
view is not supported by law or common practice. The Speaker of Parliament is not
appointed by the Head of State but is elected by the National Assembly at its
first sitting.
Further, the proposed amendment has no backing or basis in regional and
international instruments. It is a return to the direct appointment of judges
by a single person (the advice of the Judicial Services Commission
notwithstanding), a practice which, at least in Europe, is no longer extant. It is another layer of
imperium added to an already powerful presidency which betrays the separation
of powers, judicial independence and rule of law clauses in the
Constitution.
Local
Critiques of
Constitution of Zimbabwe Amendment
(No.1) Bill
Two reasons advanced in
favour of amending the current constitution are to the effect that the current
constitution allows junior judicial officers to assess and select their
superiors
and that the country must revert to the scenario under the former constitution
when the President was unhindered in his choice of Chief Justice. The first argument is
demonstrably fallacious since ordinary people frequently select their
superiors, most markedly in the form of the person who will be President and
Commander-in-Chief of the Defence Forces. Veritas have gone on to argue that not all members of the Judicial
Service Commission are judges (and thus juniors of the Chief Justice) and
listed other instances of similar selection processes including company
shareholders electing or appointing directors and boards of directors
appointing their chairpersons. The argument for
reverting to the former Constitution is counter intuitive given the extensive
work that went into drafting a new Constitution which was resoundingly approved
in a referendum.
Veritas have rightly argued that that
amendments to the constitution must not be done lightly and indeed, “…not so as to compromise the independence of
the Judiciary, one of the constitutional pillars on which the rule of law
rests.”
The Law
Society of Zimbabwe also severely criticized the proposed constitutional
amendment and expressed dismay at the willingness to amend the constitution
when so many provisions are yet to be implemented. They noted that the
amendment bill “… negates the spirit of accountability
and transparency…gives unfettered power to a single individual to appoint the
most influential positions in the judiciary. This has dire consequences on
judicial independence.””
Comparative
Analysis: Judicial Appointment Procedures
The African phenomenon of the
‘imperial presidency’ is akin to the Latin
American experience with the ‘hyper-presidency.’ Chile, Mexico, Paraguay,
Uruguay and Argentina have all had to deal with presidencies with sweeping
powers.
One measure adopted to counter the growing power and influence of the executive
branch has been the use of a judicial council in judicial appointments. This was also the basis
for their introduction in France and Italy.
The judicial
council/commissions model, used by 60% of countries in the world, is by far the
world’s most popular method of judicial appointment. The ubiquity of this
model is because it is a ‘happy medium’ between “the polar extremes of letting
judges manage their own affairs and the alternative of complete political
control of appointments, promotion and discipline.’ This model is used in
Ireland, Israel, New Zealand and the Netherlands. Most American States
have also adopted this model, in the form of ‘merit commissions’, as a reaction
to partisan judicial elections. American merit
commissions usually provide the short-list of three nominees to the Governor to
appoint.
Some jurisdictions go as far
as to require legislative approval after appointment of a nominee from the
judicial council/commission process. This ensures participation by all three
branches of government. This is not the case in
Zimbabwe and indeed in Australia and Canada where appointment, further to the
judicial council/commission process, is the sole responsibility of the
executive.
Proponents of this model argue that reducing the number of branches of
government involved would also reduce the number of actors the judiciary feels
beholden to and thus, increase judicial independence.
It goes without saying that
concentrating powers of both nomination and appointment in a single branch is
deleterious to judicial independence and democratic governance. Whilst
defending the separate nomination and appointment process in respect of the
President in the Constitution of the U.S.A., Alexander Hamilton stated that “…every
advantage would in substance, be derived from the power of nomination, which is
proposed to be conferred upon him; while several disadvantages which might
attend the absolute power of appointment in the hands of that officer would be
avoided.”
Heavy reliance on one branch of government “…tarnishes the purity of the
judiciary” and what is needed is an “…appointment process which is open and
transparent…”
For these reasons, the American President requires the advice and consent of
Senate to approve his or her judicial nominations.
This American model is replicated in the
Czech Republic and is also used in Slovenia with the distinction that it is the
lower house (Državni zbor) which
votes for or against the nominee. The Slovak Republic
provides for the converse, with the unicameral parliament providing nominees
for the head of state to confirm. Further, and perhaps
most importantly, the pioneer Constitutional Court conceived by Hans Kelsen,
the Austrian Constitutional Court, also provides for appointment by the
President following nomination by the federal government and two houses of the
federal parliament. Thus, appointment of
judges is generally upon collaboration of at least two branches of government.
The
Other Side: Institutional Variation in the Judicial Appointment Process
It must be conceded that
institutional variation in the judicial appointment process is not uncommon.
Separate appointment procedures for the most senior members of the bench, or
even for the highest court in the land, is not only common practice but has
been identified as a key feature in jurisdictions in which constitutional
adjudication is within the exclusive purview of one court/higher courts. It has already been
mentioned that in the U.S.A. merit commissions usually submit nominees to the
Governor whereas Federal Judges are nominated by the President and approved by
the Senate. Three African countries have similar variation in judicial appointment.
In Ghana, the appointment the Chief Justice is done by the President in
consultation with the Council of State and with the approval of parliament. There is no role for the
Judicial Council in respect of this key appointment, unlike the appointment of
the other Supreme Court Justices where the President acts on the advice of the
Judicial Council in consultation with the Council of State and with the
approval of parliament. In Kenya, The President
appoints the Chief Justice and Deputy Chief Justice in accordance with the
recommendations of the Judicial Service Commission, subject to the approval of
the National Assembly. All other judges are
appointed in accordance with the recommendation of the Judicial Services
Commission without need for parliamentary approval. More poignantly, the
Chief Justice and Deputy Chief Justice in South Africa are appointed by the
President after consultation with the Judicial Service Commission and leaders
of parties represented in the National Assembly. The President and Deputy
President of the Supreme Court of Appeal are appointed by the President after
consulting the Judicial Service Commission. In other words, the
appointing authority (the President) is only required to consult but is not
bound by the views of the other bodies in the choice of these top judicial
officers.
Further, there is no requirement for the rigorous public interview process in
respect of these top judges, even though other judges of the Constitutional
Court are subjected to this process under Section 174(4) of the Constitution of
South Africa.
The reference to this
practice is not a commendation of the mooted amendment to the Constitution. To
the contrary, it is vital to note that in Kenya, Ghana and the U.S.A. there is
need for some form of parliamentary approval of the President’s appointee – in
other words the appointing power is not left entirely to the executive branch
of government. The President needs to collaborate with the legislature. In
South Africa, where no such legislative sanction is required, there are growing
calls to amend Section 174(3), which provides for appointment of senior
judicial .fficials, to move it towards
Section 174(4), which provides for the
appointment of all other Constitutional Court judges. In fact, the South
Africa organization Freedom Under Law
offers four seminal reasons why the process under Section 174(3) should move
towards Section 174(4). This is vitally important as these arguments are
advocating for a provision of law which would be similar to the current section
180 of the Constitution of Zimbabwe and distinct from the situation as proposed
by the mooted amendment of the Constitution of Zimbabwe. The reasons are as
follows:
“First: it would
prevent a situation where, if the Chief Justice was not appointed from the
ranks of the Constitutional Court judges, his elevation to that court as Chief
Justice could be seen as less rigorous than for other Constitutional Court
judges.
Second: given the
inherent equality in the position of such judges… there seems little reason why
a similar process of appointment should not be adopted for the appointment of
all Constitutional Court judges.
Third: to the
extent that there is a distinction to be drawn, the unique position of the
Chief Justice requires greater, not
fewer, safeguards, to insure that his appointment is, and is seen to be,
consistent with the highest standards of independence of the judiciary.
Recent
depictions of Justice Mogoeng as the President’s lapdog [42] (whatever their origin
or accuracy) are indicative of how quickly a system without vigorous
institutional safeguards can lead to a perception, however unwarranted, that a
judge is not independent. When that judge is thereafter appointed as Chief
Justice, such perceptions may undermine the rule of law.”
Thus, where there is
institutional variance in judicial appointments, there is still the requirement
of consent of another branch of government as is the case in Kenya, Ghana and
the U.S.A. A failure to provide such a safeguard is deleterious to judicial
independence and accountability as has been noted in the case of South Africa.
Any amendment of the Constitutional should enhance rather than reduce judicial
independence and accountability and this is the hurdle where Constitution of
Zimbabwe Amendment (No.1) Bill fails.
Conclusion
The politicization of the judiciary to create a compliant judiciary
is inimical to the rule of law and proper administration of justice. The
intimidation of judges who hand down judgments at variance with the ruling
party’s interests is a matter of on-going concern. The president has openly
criticized judges who have acted in a manner which he perceives to be
unfavourable to ruling party interests. Further, the purging of
the Gubbay led Supreme Court bench in 2001 orchestrated by the ruling party allowed
for the appointment of new judges that were more acceptable to the ruling
party.
The current Constitution departs from this paradigm by insulating judicial
appointments from the whims of the executive. Any changes to the appointment
process must, in the letter and spirit of the Constitution, facilitate greater
independence and accountability. Unfortunately Constitution of Zimbabwe
Amendment (No. 1) Bill, 2016 is the antithesis of independence, accountability
and indeed good governance.
BIBLIOGRAPHY
Laws
Veritas Court Watch 2 March 2017 “Chief Justice Succession: The
Continuing Saga.”
