Zimbabwe: Judicial Appointments Are Not Political

A small group of lawyers are examining the outer limits of tenure by the courts, as is their right as a citizen, although it is a constitutional issue, nothing can be definitively decided until matters have reached the top of the judiciary.

The simplistic argument seems to be whether a retirement age is a tenure limit, and we will certainly find out what the answer is definitely at some point without further argument. Until then, we just have to be patient as the wheel of justice turns.

Unfortunately, some of the commentators are bringing up the policy and trying to suggest that the president can decide who sits on the bench and in what position.

The constitutional authority for appointment is the president, but within a narrow electoral range.

The President must act within the framework of the Constitution, which, although it could throw out a wide network of suitably qualified candidates, in practice reserves the task of identifying the nominees for the Judicial Service Commission, with a very limited margin of discretion given to the President, and even then, the President shall notify the Senate of President if he elects the candidate who is not the commission’s first choice and recommendation.

Sometimes the president has zero discretion. In the most recent constitutional amendment, Parliament gave judges absolute freedom of choice. Before reaching retirement age of 70, if a judge declares that he will be up to 75.

In this case, the President only has the role of an auditor to check the certificate. If the judge is medically fit for the job, and presumably mental fitness is paramount, as judges are not expected to practice athletics on the bench, but rather have a sharp mind with all the skills present, then the president has no option but to extend the judge’s term of office.

On the physical side, the test is likely if they are fit enough to spend the required hours on the bench and in their chambers each day; Nobody wants a judge to upset in the middle of a hearing.

It doesn’t matter whether the president admires the judge or even actively dislikes him. The decision of a mentally and physically adequate judge to continue his service until the age of 75 is entirely at the discretion of the judge.

If they want to keep going and are fit, the president has no options; the extension must be made regardless of the President’s own preferences.

There is a slight difference to the judges of the Constitutional Court.

They are given a non-renewable term of 15 years, but if they are below retirement age or the extended age of 75 they can move to the Supreme Court or the Supreme Court at the end of that term.

Since in practice it is unlikely that young judges will be appointed or promoted to the constitutional court, this term limit is largely academic.

Much has been made of the President’s appointment of five judges to the Constitutional Court and six judges to the Supreme Court in the past two weeks. But in all 11 cases the appointments were promotions, again after “consultation” with the JSC, that is, on the recommendation of the JSC.

With the end of the transitional provisions of the new constitution last year, the seats of the Supreme Court and the Constitutional Court had to be split. There is now a constitutional lock activated for a judge sitting in two courts. So the appointments to the Supreme Court had to be made.

The Judicial Service Commission for this critical first bank searched for nominees, interviewed them and advised them. This took a while, so there was a group of senior Supreme Court justices in place, who were among those who had heard constitutional cases when they were referred to the old Supreme Court.

Eventually the five names and referrals came from the JSC, and it happened to be the same five very senior and experienced judges who had acted, and the president made the appointments without a fuss.

That in turn released the Supreme Court, and again the JSC made its recommendations and sent the six names, all very experienced judges, and again they were appointed.

So the top two banks were filled as it should be. Presumably there is now a procedure to fill the vacancies in the High Court, since all six new Supreme Court justices were from the upper echelons of the High Court, to bring this bank back to full strength and to recommend a new head of the High Court as the new judge president.

Some have asked why all new Constitutional Court judges have been promoted to the Supreme Court and all new Supreme Court judges have been promoted to the higher levels of the Supreme Court. There is an obvious reason for these JSC recommendations.

We need judges in the two highest courts, both of whom are at the forefront of the judicial system in their different areas, to get it right, even when they sit in groups, so that the occasional dissenting voices can be handled.

An obvious test for promotion is looking at a judge’s track record. Of course, they must meet or exceed high legal and labor standards, but just as important is that their judgments on appeal are overturned.

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If almost all of their judgments pass on appeal, at least if they gain experience, then it can be assumed that they will get it right, and certainly that a bank of three or seven judges together will get them right.

Getting rid of a judge is extremely difficult. The complex process starts in the JSC and then they recommend a tribunal that the president appoints from a rather small group. It should be noted that the number of “duds” on the bench is very small, but they are in the junior ranks of the high court.

If you’ve been on the bench for a decade or two, everyone knows how good you are as a judge, another argument for choosing a promotion.

It is not automatic for a first class attorney, even a very experienced attorney, to make a first class judge. Being able to grapple with laws and legal precedents and then argue a world-class case is different from deciding a case.

Some make the transition, others hesitate, and there are some very good and experienced lawyers who prefer to change by standing in front of a bank rather than reducing their enthusiasm by sitting in the bank.

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