Young Lawyers Association of Zimbabwe Position Paper on Constitutional Amendment Bill No. 2 for Submission to the Parliamentary Portfolio Committee on Justice, Legal and Parliamentary Affairs

The Young Lawyers Association of Zimbabwe (YLAZ), which is a membership-based organisation representing the interests of Zimbabwean legal practitioners who are below the age of 35 years or with less than 8 years’ experience in practice, hereby submits its position on Constitutional Amendment Bill No. 2 (hereafter “the Amendment Bill”) on behalf of its members:

General opposition to the Amendment Bill

We will confine ourselves to addressing in detail our objections to those aspects of the Amendment Bill which directly affect us as legal practitioners and the practice of law, namely, the appointment and tenure of judges and the appointment of the Prosecutor-General. However, we wish to make clear that we are opposed to the Amendment Bill in toto in that:

  • We believe the amendments are premature in that the Constitution of Zimbabwe, 2013 is yet to be fully implemented and should not be amended until that has been achieved;
  • The amendments generally serve to consolidate power in the hands of the Executive at the expense of other arms of government and constitutional bodies thereby undermining the separation of powers and the rule of law;
  • The amendments do not appear to be addressing any legitimate vice or defect in the Constitution of Zimbabwe, 2013 and therefore they are unnecessary;
  • We are opposed to the amendments being rushed through without due consultation with the people as there was not adequate notice of the public consultations and the public consultations are being held at a time when the majority of people are not able to get to them due to lockdown restrictions;
  • The Constitution of Zimbabwe, 2013 was approved by over 90 per cent of the electorate in a referendum and therefore it is undemocratic to amend that people-driven Constitution without going back to the people.

Changes to the Appointment of Judges

We object to the proposed changes to the appointment of sitting judges to a higher court based on the following grounds:

  • The proposed changes serve to consolidate greater power in the office of the President and to reduce the role of the Judicial Services Commission (JSC) in the appointment process, thereby undermining the independence of the judiciary. By removing the requirement that the President must appoint the judges from a list of three names presented to him JSC, the amendments would effectively relegate the JSC’s role to merely providing recommendations which the President may disregard.
  • The proposed changes undermine the transparency of the process and totally remove the role of the public by removing the requirement of a public interview process. The appointment of sitting judges to higher office within the judiciary is something that the public has an interest in and should not be side-lined. A sitting judge’s track-record as a judge is just as relevant, if not even more so, to the question of whether they are be eligible for a promotion within the judiciary as is the non-judicial track-record of a person not yet appointed as a judge. Therefore, it is irrational for persons being appointed as judges for the first time to be interviewed, but to exempt sitting judges being promoted to higher courts from the same transparent process.
  • The requirement that a list of names be provided to the President by the JSC, based upon the outcome of a rigorous public interview process, was designed to ensure that only those of the highest competence are appointed to offices in the judiciary as well as to insulate the judiciary from being politicised. By removing those requirements for the appointment of sitting judges to higher courts, the higher courts will be less insulated from political interference, will be less likely staffed by the most competent of judicial officers, and it will create a perverse incentive for sitting judges of lower court to be more pliant towards the Executive in the hope that they may be appointed to higher office.

Changes to the Tenure of Judges

We object to the changes to the tenure of judges and acting judges of the Constitutional Court and the Supreme Court on the following grounds:

  • The fixed tenure of judges, which is one of the key pillars of the independence of the judiciary, will be seriously undermined by this amendment. The amendments will allow certain judges to stay on as judges after they have reached the retirement age of 70 years on rolling contracts of one year, if the President after consultation with the JSC is satisfied they are fit to continue. The President will not be bound by the JSC’s advice and will effectively have the power to determine who is allowed to stay on and who will be forced to retire.
  • Judges who are allowed to stay on after retirement age will have no security of tenure whatsoever, as they will be on one-year rolling contracts, and therefore will be more likely to be pliant towards the Executive in order to increase their chances of their contract being renewed each year.
  • Similarly, judges who have not yet reached retirement age may more inclined to be pliant towards the Executive in the hope that on reaching retirement age they will be allowed to stay on. Those judges who exhibit independence and are not pliant towards the Executive may be more likely to be refused an extension of their tenure on reaching retirement age. In short, the amendment serves to increase the President’s influence and control over the entire judiciary.
  • The process is also devoid of any transparency. The public will have little to no access to any information on whether judges who have reached retirement age are really still fit to continue or whether they are being allowed to stay on as a political favour.
  • As lawyers we have an interest in preserving the independence of the judiciary as well as the perception of the independence and competence of the judiciary by the general public. We are therefore strongly opposed to amendments that have the effect of undermining both.

Changes to the Appointment and Removal of the Prosecutor-General

We object to the proposed changes to the appointment and removal of the Prosecutor-General on the following grounds:

  • The proposed amendments will undermine the independence of the Prosecutor-General by increasing the power of the President in both the appointment and removal process, side-lining the role of the JSC and totally removing the role of the Law Society of Zimbabwe altogether.
  • Instead of the post of Prosecutor-General being publicly advertised and the various candidates being subjected to public interviews, with names of the three best qualified candidates being sent to the President for appointment, the proposed amendment will replace it with an opaque process in which the President will have largely unchecked power to appoint whomsoever he or she chooses as Prosecutor-General. Though the President will still have to make the appointment “on the advice of the Judicial Services Commission.’ the amendment brings uncertainty as to what the JSC’s role will be as the process shall no longer be spelt out clearly as it presently is in the Constitution.
  • Similarly, the process of removing the Prosecutor-General (which presently is the same as that for a judge), will be changed to give the President virtually unchecked powers thus leaving the Prosecutor-General vulnerable to the whims of the President. Instead of the JSC initiating the process as at present, the President will be entitled off his or her own initiative to appoint a tribunal to investigate the Prosecutor-General (which will no longer be required to include representatives from the Law Society of Zimbabwe). The President will not be bound by the recommendation of the tribunal and may proceed to dismiss the Prosecutor-General notwithstanding its findings.
  • As lawyers we have an interest in ensuring that the Prosecutor-General is independent and that the criminal justice system is not subjected to political interference. Therefore, we are strongly opposed to the changes which undermine the independence of the prosecution authority. We are all the more determined to defend this particular provision of the Constitution, given that several of our colleagues are currently being prosecuted for their involvement in a constitutional challenge to a violation of process for the appointment of the Prosecutor-General as it currently stands. If the constitutional process that they were trying to enforce is removed altogether, all that they have suffered for their defence of the Constitution would be in vain.

For the above reasons, we are opposed to Constitutional Amendment Bill No. 2 and we strongly urge all honourable Members of Parliament to reject this Bill which is an assault to our democracy and the rule of law.

Source: Young Lawyers Association of Zimbabwe (YLAZ)