Justice Makarau, who was elevated in May to the Supreme Court bench from the post of Judge President, told the Zimbabwe Independent this week that government should create a panel of judges with varied law backgrounds for the Supreme Court which also operates as the Court of Appeal.
Currently, the president appoints judges after consultation with the Judiciary Services Commission and according to Amendment No 19 is supposed to consult Prime Minister Morgan Tsvangirai, which he did not do when he appointed five judges in May.
The unilateral appointments of judges, together with the recent re-appointment of provincial governors, appointment of ambassadors, the Attorney-General Johannes Tomana and Governor of the Reserve Bank Gideon Gono, has angered Tsvangirai, who has since declared them unconstitutional, null and void.
“We probably need to have a panel of judges with varied backgrounds in experience such as businesspersons, media practitioners and so forth,” Makarau said. “This would make it easier to handle special issues. There are so many variations which could be used to appoint judges, among them, the confirmation of appointees by parliament. So long as this is not abused for political reasons it is the right way to go.”
Makarau accused government of interfering with the judiciary by enacting laws in parliament that counter court rulings which are not favourable to the state.
“It is disheartening if you make a decision in court and parliament changes the law. The judiciary should be accountable to the citizens. We have unfortunate incidents where parliament changed the law when we had given an unfavourable decision against the government. This makes the whole exercise academic as the complainants do not get the relief sought,” Makarau said.
The judge gave examples, which included the constitutionality of prolonged stay of prison inmates on death row and the legality of the land reform programme embarked on in 2000.
“Parliament was used to change the law after the courts had ruled that the prolonged stay of inmates on death row was a violation of human rights. This was also replicated in cases surrounding the land reform programme on cases brought forward by members of the Commercial Farmers Union (CFU) who challenged the process,” she said.
“This development is against the principle of separation of powers between the three arms of the state. The judiciary should be accountable to the citizens when it makes decisions.”
In a landmark decision on December 21 2000, the full Supreme Court bench headed by the then Chief Justice Anthony Gubbay ordered that farm invaders be removed from the farms they had occupied and that government should produce a workable land reform programmme in addition to the restoration of the rule of law on all commercial farms. This essentially required the removal of all unlawful invaders from commercial farms and the prevention of further invasions.
However, Statutory Instrument 338 of 2001 amended the Land Acquisition Act to give government full rights on the land when an acquisition order was issued, including the rights to survey, demarcate and allocate land for resettlement.
A provision was included in the Act to make it an offence for an owner or occupier of the land to interfere with the process arising from effective occupation.