Last Tuesday stood as the breaking of a new dawn in Zimbabwe’s judiciary appointments.
BY PAIDAMOYO MUZULU
For the first time, the public had a glimpse of the process that leads to the appointment of judges to the benches of our superior courts.
The glimpse was enough for the public to learn how affirmative action and gender considerations used in the past to appoint judges has in the long run compromised the quality of the bench.
The genesis of the affirmative action is grounded in Zimbabwe’s political history. At independence, the High Court and Supreme Court benches were largely male and white in complexion. Very few blacks or women managed to break the proverbial glass ceiling to guide the delivering of justice in the country during the pre-1980 era.
It thus happened that after 1980 the government was in a rush to have the complexion of the bench reflect the country’s demographics and hence the urgent promotion of black judges to the bench.
From 1980 to 2000 there was a rapid transformation of the bench with many blacks joining the rank of Justice as fewer whites got appointed to the same.
Justice Enock Dumbutshena became the first black Chief Justice but upon his retirement in 1990 Justice Anthony Gubbay became the chief justice until his unceremonious departure in 2001.
Justice Gubbay’s departure and that of two other white High Court Judges, Justice Fergus Blackie and Justice James Devittie should be read and understood in the contest of the politics of the day then.
The courts had ruled the fasttrack land resettlement programme illegal thereby inviting the wrath of war veterans who besieged the Supreme Court chambers.
Justice Gubbay was haunted out of office and his colleagues resigned in solidarity. However, there remained Justices Ahmed Ibrahim and Nick McNally who argued they would serve through their terms.
The then Judge President Godfrey Chidyausiku was immediately appointed to replace Justice Gubbay. Since then the High Court and Supreme Court benches have been enlarged. The Supreme Court has grown from five judges to the envisaged 13.
The country then embarked on a constitution writing exercise that culminated in the new charter in May 2013. It is the same new charter that has altered the manner in which judges will henceforth be appointed to the bench —through public hearings.
The Judicial Services Commission (JSC) announced three vacancies at the Supreme Court and invited nominations for those qualified to fill the vacancies.
The call was heeded by 10 judges, eight from the High Court and two from the Labour Court. These were Justices Chinembiri Bhunu, Charles Hungwe, Samuel Kudya, Lavender Makoni, Nicholas Mathonsi, Susan Mavhangira, Tendai Uchena, Happious Zhou, Euna Makamure and Moya-Matshanga.
Many in the public gallery during the interviews were shocked that a judge seeking higher officer did not know basic legal things like the difference between an ‘action’ and ‘application’ in civil litigation.
The audience was driven into gasps and embarrassment as Chief Justice Chidyausiku tore into the hapless Justice Euna Makamure over this issue. Chief Justice Godfrey Chidyausiku publicly dressed the Labour Court judge down for being ignorant of elementary legal concepts.
In the embarrassing exchanges Justice Makamure was forced to admit that she did not know the difference between an “action” and an “application” in civil cases, had never handled a single divorce case in her career and had been skipped for promotion in the last decade by her juniors but she insisted she was eligible to be on the Supreme Court bench.
“I will learn on the bench and I’m willing to read,” she said. In response, Justice Chidyausiku said: “Don’t you think you have to go to the High Court first and learn better there? The question was elementary and who do you think will teach you at the Supreme Court?”
The Chief Justice then asked her why she had not been promoted all these years.
“I was appointed at the pleasure of the President and probably he still wanted me to be at the Labour Court,” she retorted upon which Chidyausiku asked: “How will you then handle an appeal divorce case? No one has the time on the bench to teach you that.”
High Court judges Chinembiri Bhunu and Charles Hungwe spoke of their dilemma on the land issue and personal indiscretions respectively.
Bhunu said: “The only thing that could have compromised my standing is when we opted to get farms.
“I felt as a citizen I had to get land. The circumstance in which land was made available was not done in a manner that would remove controversy.”
Justice Hungwe responded to the issue of his personal indiscretions thus: “The question is surrounding my private life.
I approached the necessary parties and the deceased. In my view, it demonstrated how I approach ethical issues.”
He was speaking about an incident where a woman with whom he had spent a night, died in Bindura.
Another applicant Justice Kudya spoke of his fear of passing the capital sentence. He said: “I have the flair for commercial (law) work which is different and interesting (as opposed to criminal). It removes the anxiety of imposing capital punishment. One does not lose much sleep on such issues (commercial law) because they don’t affect the liberty of individuals.”
The interviews among other things exposed judges as fallible humans who also made mistakes like every other person.
The interviews also exposed the inadequacies of affirmative action on the bench as some people could have ascended the ladder before they were ripe.
Some people in the audience where left wondering what more the public could get to know about the current bench if the justices were exposed to the same public interview process before they were reconfirmed into their offices.
One thing that will remain etched in the collective memory of the citizens is that some judges have their wigs and robes to thank for the respect they receive from the society.