Statement on the appointment of judges to the constitutional court of Zimbabwe

The Zimbabwe Human Rights NGO Forum (‘the Forum’) notes the announcement by the Judicial Service Commission (‘JSC’) of five vacancies of judges of the Constitutional Court of Zimbabwe and the invitation for nominations. This comes in the wake of the passage of seven years since the adoption of the Constitution of Zimbabwe (‘the Constitution’) on 22 May 2020, marking an end to the transitional phase in terms of the Sixth Schedule to the Constitution.

Although section 166 of the Constitution established the Constitutional Court in 2013, section 18(2) of Part 4 of the Sixth Schedule of the Constitution deferred its operation as an independent court for a period of seven years. Section 18(4) of the Sixth Schedule also provided that the Constitutional Court was to consist of the Chief Justice and the Deputy Chief Justice, and seven other judges who sat together as a bench to hear a matter. Consequently, judges of the Supreme Court held the dual responsibility of presiding over matters in both the Supreme Court and the Constitutional Court.

However, since the lapse of the seven-year period on 22 May 2020, section 166 of the Constitution becomes operative. In terms of section 166(1), the Constitutional Court is now supposed to consist of the Chief Justice, Deputy Chief Justice and five other judges reducing the full bench of the court from nine to seven judges. More significantly, the lapse of the seven-year period means that the Constitutional Court has been officially separated to function independently with its own judges who will specifically preside over matters in the Constitutional Court only.

Delayed processes

The Forum is concerned by the delayed announcement of vacancies and the recruitment process of the five judges needed for the Constitutional Court. The vacancy notice comes after the 22 May mark, yet the lapse of the seven-year transitional period was always anticipated. The procedures for filling these vacancies should have been initiated and completed before 22 May 2020, and newly appointed judges of the Constitutional Court should have assumed their duties on the same day. While section 166(2) of the Constitution allows for acting judges to the Constitutional Court to be appointed as necessary, there was no justification to delay the recruitment process, to warrant resorting to having acting judges currently constituting the Constitutional Court.

The Forum notes the general slow-pace with which Constitutional Court processes have been handled. For instance, Rules of the Constitutional Court were only promulgated in September 2016. Section 167(4) of the Constitutional provides for the passing of an Act of Parliament to provide for certain operations of the Constitutional Court. A Constitutional Court Bill was only gazetted in September 2019, and is still to be passed into law.
The designation of a Constitutional Court is a milestone in the history of the judiciary and democracy in Zimbabwe, meant to signal a break from the past and to charter a new course towards constitutionalism. However, relevant processes have been marked by many false starts.

Constitution of Zimbabwe Amendment (No.2) Bill

The process of appointing the new judges, comes at a time when government has proposed to amend the Constitution under the gazetted Constitution of Zimbabwe Amendment (No.2) Bill, which among others, seeks to eliminate the mandatory public interview process for judges who would be appointed from one superior court to another. These amendments, if passed, constitute an affront to the principles of the independence of the judiciary, separation of powers and judicial impartiality. Current provisions of the Constitution allow for transparency. Appointments to higher courts through “tapping on the shoulder” is a regime long relegated as archaic in democratic societies. Zimbabweans derive no benefit in reverting to the position under the Lancaster House Constitution which the majority rejected by voting in the 2013 Constitution. Further, the process will mark a departure from regional and international standards and best practices, including the Lilongwe Principles and Guidelines on the Selection and Appointment of Judicial Officers recently adopted by the Southern African Chief Justice’s Forum (SACJF). The NGO Forum urges the government to withdraw these proposed amendments.

The Forum strongly urges the JSC and the President to ensure timely appointment of the five judges so that the bench is fully constituted to discharge its duties. The Forum reiterates the constitutional position that the appointment of judges must faithfully follow procedures of appointment of judges as set out in section 180 of the Constitution, and must be based on merit, objectivity, fairness and equity considerations that take into account gender, disability and other measures. This will ensure a truly independent and impartial judiciary which can execute its constitutional mandate without fear, favour or prejudice.

Source: Zimbabwe Human Rights NGO Forum (HRForum)

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