Tichawana Nyahuma THE appointment process of judges and or the extension of the term of office of the Chief Justice of Zimbabwe has, in recent years, not been short of controversy.
One recalls the case of then-University of Zimbabwe law student, Romeo Zibani in 2016 (see Zibani vs JSC & Others HC12441/16).
The same issue also played out in court in 2021 (see Musa Kika vs. Minister of Justice, Legal & Parliamentary Affairs & Others HC264/21).
These cases and others, were indirectly or directly connected to the present Chief Justice of Zimbabwe, the learned Luke Malaba. The appointment process of judges is therefore a sensitive issue, which ought to be handled with great caution.
In this discussion, the focus is on the appointment process of judges in Zimbabwe. The debate is, however, limited to the public interviews that judges are subjected to prior to their appointment as such. But then I digress if only for the sake of clarity and completeness.
In those countries that claim to be democratic, they do so on the premise of one of two principles.
The one is styled “parliamentary democracy” and the other is the so-called “constitutional democracy”.
The distinction between them lies in where the executive authority of the State resides. The United Kingdom, Canada and Australia etcetera, are typical examples of parliamentary democracy systems.
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There, executive authority is vested in the Prime Minister and Parliament. On the other hand, Zimbabwe, South Africa and the USA, and indeed many others, follow the constitutional democracy path in which the executive power of the State is reposed in the president and his cabinet.
The executive authority of a State refers to the person, or body of persons, in a country who, or which, makes certain major decisions on behalf of such a State.
Decisions and duties, such as, the signing of bills of Parliament into law, deploying the army, calling for elections, appointing ambassadors and so on, fall within the realm of executive authority.
All over the world, so-called democratic regimes, be they parliamentary or constitutional, are made up of three branches being the executive, the legislature and the judiciary. The executive is that arm, which consists of the president and his/her cabinet.
The legislature is composed of members of parliament. The judiciary, (members of the bench), is made up of the learned judges of the superior courts and the magistrates of the lower courts.
It is plain that in both the executive and the legislature, the men and women, who occupy those hallowed offices do so after contesting and winning in general or by-election(s).
They derive their mandates directly from the people, the voters.
However, the learned members of the bench are not elected.
They are appointed by the responsible authorities per the relevant laws of the country concerned. This is the pith of this discussion to which I now return.
But why are members of the bench not also subject to a vote when they constitute the third arm of the State, the judiciary, which is no less important than the other two?
Why do they not also campaign for office as politicians do?
What is so special about judges that there is a special procedure by which they gain entry into office?
It is contended that a judicial office is not political in nature. Its architecture and the materials by which it is constructed are professional throughout.
As such, only men and women who possess the requisite minimum qualifications and experience are eligible to enter into it. Further, the role of judges in society is specialised in nature.
They adjudicate over disputes among the citizenry. They also see to it that those who cause disquiet and discomfort in society through criminal acts, are dealt with according to law.
Accordingly, being a judge is not something that can be assigned to a politician. An election process will not yield the right personnel as judges.
Thus, the appointment process of judges in Zimbabwe and South Africa, to name only two, is preceded by public interviews. The said interviews are only one aspect, among others, of a supposedly thorough vetting process that the candidates have to be subjected to before being duly appointed.
The interviews are a measurement by which to estimate the suitability of the candidate’s fitness to discharge the duties of office of a judge. The justification is that not every legally trained block would be a fit and proper person to occupy a judge’s chambers.
In my judgment and in my own words, although the public interviews are legitimate as they increase transparency in the whole process, I am of the firm view that the nature of questions that are thrown at the candidate judges are overly, if not outlandishly, legalistic.
Indeed, the impression is irresistible that the main aim is to appoint persons who are very sound in law. Obviously, this is not bad.
However, what is it that ought to reside in an individual, apart from his/her legal qualification and experience that qualifies him/her to hold the office of a judge?
Is it all about the law? I think not. Questions such as “explain the doctrine of constitutional avoidance” or “what is the Plascon-Evans rule?” or “what are the requisites of an urgent chamber application”, or “ explain the doctrine of muteness of disputes”, and such like legal matters although pertinent, ought not to be the decisive factor on who should land the post of a judge.
At any rate, does the public being the audience for which the interviews are conducted appreciate these legal questions? Again, I think not.
This raises the question; “why hold ‘public’ interviews when the target audience is deaf and blind to the points of law that are brought forth through those purely legal questions?”
From where I sit, the main consideration ought to be the prospective judge’s sense of judgment. In order to arrive at a proper conclusion as regards one’s sense of judgment, it surely should take much more than one’s knowledge of the law.
Many non-legal questions become relevant. Things such as the sanctions that have occupied a lot of space in social and political discourse in this country for these last 20 or so years are relevant. What is that person’s attitude towards the sanctions?
Is it a political issue that should not concern judges? Other issues may be the candidate’s views on whether or not sanitary pads ought to remain a commercial product. This is an important topic which has not received enough attention from the media and politicians alike.
Is the issue of climate change relevant to a judge? Then there is the matter of the public broadcaster and other State media’s coverage of political issues, particularly during election time. Could their treatment of certain political players be said to be fair? What is the candidate’s approach towards that subject matter? What about the recent constitutional amendments numbers 1 and 2 that sought to increase the present Chief Justice’s tenure of office?
What of the question of judicial capture and independence? Is it the truth or just a myth? In legal discourse, there are what are known as “hard cases”.
How does the prospective judge envisage to deal with such matters? What about political pressure, particularly from those holding the levers of power, the government of the day?
Does the prospective judge have the nerve to fend off such undue pressure? Allegations of corruption on the bench have sometimes been made.
What are the candidate judge’s views and experiences on them and how does he propose to deal with such once he/she migrates to the bench?
What about the candidate’s temperament? Is he/she easily irritable? The list is definitely without end. As I see it, members of the public being the main stockholders in the nation deserve to have some insights into the kind of men and women who one day, will decide their very future, politically, economically and otherwise.
It is contended that only when we have some understanding of the candidate’s impressions towards these issues and obviously more, will we be able to say, “Here is a fit and proper person to hold the office of a judge”.
It is repeated that it is definitely not all about the law. There are brilliant lawyers who turned out to be lousy judges and vice versa. At any rate, being very knowledgeable or comfortable with the law does not translate into some form of Solomonic wisdom for the judge.
It has been said that even though the Biblical Solomon was wise, he too could not understand a woman. Consequently, judges are also human and therefore also fallible.
The whole purpose of lawyers appearing and arguing cases before the judges justifies the reasoning that judges do not know everything about the law.
That is why after listening to arguments from the parties, they very often reserve judgment so that they take their time to consider those arguments and then, if need be, research further before eventually arriving at their decisions.
I turn now to the interviewing panel. Again, I see just too many lawyers and serving judges there. Why are things arranged in that fashion? Do lawyers know everything? If I am not mistaken, in the last round of judges’ interviews, only one panelist was a non-lawyer. I opine that it is improper that persons with legal training should dominate the interviewing panel to that extent.
When adjudicating over disputes, judges handle cases from every imaginable situation. As such, more should be done in order that the interviewing panel is composed of persons from diverse backgrounds.
The panel must somehow be representative of our societal make to the extent possible. One needs to see a street kid there, an ex-convict or even a serving prisoner there, a new farmer and a white former farmer, a chief, someone from business, the unemployed, a man or woman of the cloth, a civil servant, a trade unionist, a journalist, a politician, a diplomat, someone from the disabled.
Again, the list cannot be exhaustive. Ultimately, the aim is to identify a good judge. But what attributes must reside in a person before he/she is certified “a good judge”?
Australian judge, the learned EmiliosKyrou has argued that “a good judge” is possessed of “independence, impartiality, communication skills, patience, cultural awareness and tolerance, courtesy, compassion, humility, people skills, community engagement, a sense of perspective and a sense of humour”.
Finally, and in conclusion, is it contended that the public interviews process concerned as presently formulated and used is flawed. It saves mainly to embarrass the candidates than to determine their suitability to hold the office of a judge in a democratic society.
As such, the whole system needs to be overhauled so that the candidate’s sense of judgment becomes the primary consideration rather than his/her appreciation of the law and court procedure.
This, however, should not be read to mean that the other aspects relating to the candidates’ understanding of the law should be belittled, no.
Surely, even if one is a top notch lawyer, but if he/she is easily irritable, is temperamental and has a warped sense of judgment, such a person must not be allowed to put on judicial robes and masquerade as a judge, so it is contended.
- Nyahuma is a registered legal practitioner. The views expressed in this article are solely his own. They are not to be taken as legal advice of any sort. — [email protected]
