The appointments were done in the usual surreptitious manner and raised the ire of the MDC-T. The Zimbabwe Independent of May 21 reported that “MDC-T spokesman Nelson Chamisa… said the country’s delicate political situation meant Mugabe should have consulted with coalition government partners in matters involving important decisions such as judicial appointments”.
MDC-T’s complaints that the appointments were invalid have no basis at law, provided the president followed the procedure for judicial appointments set out in the constitution. The constitution does not follow the best practices on the appointment or promotion of judges. MDC-T erred grievously in chasing the sharing of political power in the executive and in the legislature while ignoring reform of the judiciary, the manner of judicial appointments, judicial performance and judicial ethics. In fact, the judiciary is far more important than the Attorney-General or Governor of the Reserve Bank — their obsessions!
The judiciary has virtually remained untransformed and does not enjoy the confidence of the general public. Unless the judiciary is forced to transform, the desire to uphold the rule of law expressed in the Global Political Agreement (GPA) is a fat pie in the sky. It has been argued that the GPA trumps the constitution for so long as the political agreement among the three main parties exists. The argument is supported by the provision in Article 1 of the agreement annexed to the constitution:
“For the avoidance of doubt, the following provisions of the Interparty Political Agreement, being Article XX thereof, shall, during the subsistence of the Interparty Political Agreement, prevail notwithstanding anything to the contrary in this constitution …” Section 84 (1) of the Constitution provides that the “Chief Justice and other judges of the Supreme Court and the High Court shall be appointed by the president after consultation with the Judicial Service Commission”. Nowhere does it provide that consultation with the premier is a prerequisite.
Article 20.1.3 (p) which is reportedly being relied upon by the prime minister states that the president “in consultation with the Prime Minister, makes key appointments the president is required to make under and in terms of the Constitution or any Act of Parliament”.
To then argue, as MDC- T seems to argue, that judicial appointments and promotions are covered by Article 20.1.3 (p) is untenable. Firstly, there is no definition of what are “key appointments” in the agreement or elsewhere in the Constitution. “Key appointments” become matters of subjective judgment. Secondly, the president in terms of the same GPA has the power to make appointments which may even seem “key” without the need to consult the prime minister. Thirdly, it seems that where the president is required to consult the prime minister, specific instances are spelt out.
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Fourth, judicial appointments are matters of serious constitutional import. If there had been an intention to vary the appointment process stated expressly in the Constitution would there not have been specific reference to judicial appointments? Fifth, nowhere in the entire “global” agreement does one find specific reference to any matters relating to the judiciary or judicial reform. In fact, ignoring the judiciary the GPA even goes so far as to require that uniformed forces undertake education in human rights, humanitarian law and statute law!
In terms of section 31K (2) of the Constitution, “where the president is required or permitted by this Constitution or any other law to act on the advice or recommendation of or after consultation with any person or authority, a court shall not, in any case, inquire into either of the following questions or matters — (a) the nature of any advice or recommendation tendered to the president; or (b) the manner in which the president has exercised his discretion.”
What this means is that even if the prime minister had disagreed with him, he could effectively go ahead with the appointments and promotion.
All that the president is required to do is send names of persons he intends to appoint to the Judicial Service Commission (JSC). The JSC is generally made up of appointees of the president. The JSC has no power to recommend names to the president at all. They examine the names of the proposed appointees and revert to the president with a recommendation. If they recommend against a particular proposed appointment, the president may still go ahead with the appointment. All that the president is required to do is to inform parliament that the appointment “is not consistent with [a] recommendation made by the Judicial Service Commission… as soon as is practicable.” The recommendation of the JSC does not bind him.
Parliament itself will have no power to rescind the appointment or to vary it. There is no specific time set for the president to inform parliament that his decision went against the recommendation of the JSC. This constitutional requirement does not suspend or delay the appointment. All that parliament remains with if severely aggrieved by the president’s disregard of JSC’s advice is a vote of no confidence in the president.
Where the president has in fact failed to consult the JSC before making the appointment a court of law may set aside the appointment. But in this instance, his failure to consult the prime minister may in fact be a laudable act. Judicial appointments in our constitutional tradition must be as far as possible free from political influence or horse-trading.
In terms of s 31K (2) of the Constitution, no court has any power to enquire into the JSC’s advice and how it was received or implemented or ignored by the president. Even if the JSC may have informed the president that one or more of the persons he is seeking to appoint or promote is, say, a criminal, a serial murderer, a fraudster or even a corrupt jurist the president, if so inclined, is constitutionally permitted to go ahead with the appointment.
Further, there is no specific requirement for the president to consult the JSC when appointing a sitting judge like Justice Chiweshe to the position of Judge President. With their appointment judges immediately enjoy security of tenure guaranteed under the Constitution and may only be removed “for inability to discharge the functions of…office, whether arising from infirmity of body or mind or any other cause, or for misbehaviour.” Even then, before removal can be achieved there is a cumbersome and protective constitutional process to be followed.
In my view, Constitutional Amendment No 19 or the GPA did not alter the process for the appointment and promotion of judges in Zimbabwe, sick as the process is. The GPA provided an opportunity to push for judicial reform. But this was spurned as the parties battled for political power. Regrettable as the situation is, the new constitution-making process offers an opportunity to remedy what is clearly a system that is susceptible to patronage and corruption.Tererai Mafukidze is a local lawyer.
By Tererai Mafukidze
