NEWS of President Robert Mugabe appointing six new judges to the High Court and one more judge to the Supreme Court on Monday ahead of general elections could have gone unnoticed by many ordinary Zimbabweans.
Opinion by Bart Simbisai
Some may have taken notice, but were probably unbothered.
The country has woken up to the news of new shotgun judicial appointments for much of the last 33 years.
Mugabe has appointed judges at will for so long that it is no longer really newsworthy except for those connected with the legal profession or related to the appointees.
There is a worrying circumstance with the recent appointments which came ahead of further appointments to the Electoral Court to be made soon.
These have been made on the eve of a new constitutional dispensation that would totally change and substantially improve the process of making judicial appointments.
The appointments also came on the eve of crucial general elections in which judges have so far played a critical role.
On May 22, Mugabe signed and gazetted into law the new constitution.
Certain parts of the new constitution immediately became effective.
This included the establishment of the Constitutional Court.
Immediately after signing the constitution, he swore in two new judges to the Supreme Court whose juries will have additional Constitutional Court duties for the next seven years.
These appointments are in principle worrisome.
The inescapable conclusion is that the appointments were made in order to pack the bench in the event of a change of government or to avoid the rigorous processes under the new constitution.
The appointments were also made in the context of the next elections.
Judges always play a key role when elections are held, particularly if there is a disputed outcome.
What else explains these appointments when there is no urgent need for permanent appointments?
Could Zimbabwe have been worse off by waiting for the new reformed and credible appointment processes to take effect on the assumption of office by the newly elected president in three weeks’ time?
One only needs to compare the old and the new constitution to find the underlying challenges sought to be avoided by the executive.
Section 84 of the old constitution, which is still effective, provides that the Chief Justice, Deputy Chief Justice, judges of the Supreme Court, Judge President and judges of the High Court are appointed by the president after consultation with the Judicial Service Commission (JSC).
Where the president has appointed any of these judicial officers inconsistent with any recommendation made by the JSC, the president shall inform parliament as soon as is practicable. This requirement does not give parliament powers to rescind or vary the appointment. It is simply a courtesy notice.
Prime Minister Morgan Tsvangirai has often argued that in terms of the old constitution, as amended by Amendment Number 19, he is entitled to be consulted when these appointments are made. But Mugabe has consistently demurred and ignored all protestations.
What is clear is that under the old constitution, the president enjoys extensive appointment power that makes the appointment of judges open to manipulation. If the president is set on appointing a person who meets the minimum legal qualifications, no one can stop it.
That is not the only concern. The appointment process is secretive. No interviews are conducted. No vacancies are announced. People are approached or willing candidates approach powerful people to inform them of their desire to be appointed as judges.
If the executive is happy, the candidates are usually railroaded onto the bench. Party political factors and connections play a crucial role. The poor selection process explains the poor quality of many appointments, judges and their judgments.
The JSC itself is made up of presidential appointees. It consists of the Chief Justice, chairman of the Public Service Commission, Attorney-General and two or three other members appointed by the president.
Of these two or three additional members, one of them has to be a current or former judge or is or has been for not less than five years qualified to practise as a legal practitioner in Zimbabwe or possess such legal qualifications and experience that the president considers suitable and adequate for appointment to the JSC.
The remaining additional member(s) are to be chosen for their ability and experience in administration or professional qualifications or their suitability otherwise for appointment.
With a JSC that is made up of the president’s men and women, the president has even greater power in determining who will be appointed. The JSC commissioner position is a secondary position.
Save for the Chief Justice who enjoys some security of tenure, the rest of state office bearers know that acting against the interests of the president may prejudice their careers. As a result, the president is bound to have his way if he insists upon it.
What the old constitution does not state is the role of the minister responsible for justice.
In the experience of judicial appointments in Zimbabwe, the minister plays a critical role in choosing candidates and recommending them to the president. In fact, it is generally accepted that the president relies on the minister to point out “suitable” candidates.
It is an open secret among legal professionals that those who want to go on the bench need the minister’s blessings. The role of the current minister in the purges of judges and packing of the bench since 2000 has left no doubt as to his power in choosing who should sit or not sit on the bench.
The new constitution seeks to limit executive influence in judicial appointments by limiting the power of the president to push his preferences as parliament has the final say.
In terms of Section 9.14, senior judges, that is, the Chief Justice, Deputy Chief Justice, judges of the Constitutional Court and the Judge President of the High Court, are appointed by the president.
Before the president can do so, the JSC is required to advertise the vacancy; conduct public interviews of prospective candidates; prepare a list of three qualified persons as nominees for the office; and submit the list to the president. The president must select one of the nominees for appointment from the JSC list and refer that nominee to the Parliamentary Public Appointments Committee (PPAC) for its approval.
If the president considers that none of the persons on the list submitted by the JSC is suitable, he/she must request the JSC to send a second list of three qualified persons. The president is required to pick from the second list and refer the nominee to the PPAC and he/she cannot object to the second list. If the PPAC is unhappy, the process of submitting further names is repeated until PPAC is happy.
This is a unique position which gives our elected representatives the final say.
These provisions introduce new critical components meant to curb the abuse of political power in the making of judicial appointments. They are intended to, as much as possible, insulate the bench from partisan political appointments. They are also critical in securing the independence of the judiciary.
The president and the minister responsible for justice under the new constitution will no longer be at liberty to secretly originate candidates. The process of selection will now be open and the vacancies publicised.
There will be an open application process, followed by interviews. A limited list is submitted to the president from which he or she must pick. The limited number of nominees on the list fetters the president’s discretion.
These cumbersome appointment procedures ensure that there is a series of quality control mechanisms which will review the proposed appointees’ suitability, qualification and skills to ensure progressive jurisprudence. So senior judges cease to owe their positions to political connections, which is ideal for individual and collective judicial independence.
Appointment of other judges
With regards to the appointment of judges other than the senior judges, the new constitution says the president must act on the advice of the JSC.
The previous constitution required that the president acts after consultation.
The change in wording is critical. The president no longer has the power that he/she enjoyed under the old constitution where consultation was a mere courtesy.
As with senior judges, the JSC must advertise each judicial post to be filled; conduct public interviews of prospective candidates; prepare a list of nominees for the office consisting of twice the number of nominees as there are posts to be filled.
Unlike in the old days when the president or the minister responsible for justice’s choice carried the day unfettered, the new constitution introduces new measures meant to strengthen the bench and weed out partisan political influence in making appointments.
It also presents an opportunity for public observation. It is a great effort in attempts to restore credibility to the bench.
Composition of new JSC
The JSC itself, under the new constitution, is a widened body that is intended to be representative of the various interests connected with judicial work. It is now a body constituting of 15 members.
Clearly, the new constitution introduces a new animal with wonderful democratic, progressive and accountable features. That partly explains why Mugabe is in a hurry to appoint new judges in terms of the old constitution just before elections.
Transparency of processes
The JSC is constitutionally required in Section 9.28 to conduct its business in an open and transparent manner and in particular, it must ensure that all interviews of candidates for judicial office are conducted in public.
Zimbabweans have made this choice to open JSC’s processes to public scrutiny because of their life experiences. They have chosen that matters relating to the JSC are so important that they should not be decided in dark corners.
They have elected to allow the public to see how judges are selected and appointed. They want to see for themselves the candidates for judicial office and make up their own minds about the justifiability of appointments.
They want to participate. They want an independent judiciary and accountable judges, not political activists packed on the bench.
Reflection of society
The new constitution also demands that appointments to the judiciary must reflect broadly the ethnic diversity and gender composition of Zimbabwe. The fact that out of the group of seven, six appointees are women presented an opportunity to show the new way under the new constitution.
However, the hurried appointments raised more questions than answers. It is doubtful if some of the women appointed could have made it under the new constitutional appointment process.
The greater danger is that if a new government comes into office in three weeks’ time, it may look at the recent events and appointments as judicial packing.
It may borrow from experiences of our recent past and tear the constitutional fabric on the grounds of political necessity. The lesser and yet more pernicious danger is that some promising judicial careers among these questionable appointees may never resurrect from this momentary triumph.
Tired of the desecration of the judicial oath under successive oppressive governments in the last two years, the people of Kenya took a novel constitutionally mandated step and subjected every sitting judicial officer to re-vetting. Many resigned out of shame. Others were asked to leave. They could not defend their own previous conduct on the bench.
History has shown that politically motivated appointments have not always produced supine judges.
In the United States, Franklin Roosevelt regretted the appointment of the irrepressible Felix Frankfurter to the US Supreme Court. Theodore Roosevelt regretted the appointment of the great Oliver Wendell Holmes. Chief Justice Earl Warren became a sore to Dwight Eisenhower’s backside. There is hope. But harsher judgment awaits their failures.
The secretive appointments on the eve of a new selection process and elections is not only suspicious, but it stinks. The stench will linger on for many years to come. Unfortunately, it will engulf the judicial gowns of the new appointees.
As Lord Salisbury, the then British Prime Minister, after whom the Zimbabwean capital was previous named, complained in a letter to the then Lord Chancellor, Lord Hailsham, in 1897 about poor judicial appointments: “… the judicial salad requires both legal oil and political vinegar; but disastrous effects will follow if due proportion is not observed.”
Zimbabweans do not want even a droplet of political vinegar on the bench, especially given a series of recent controversial rulings, particularly the Constitutional Court judgment on elections.
Simbisai is a senior Zimbabwean lawyer based in South Africa.