Constitutional Court and Supreme Court Judges Appointed
The High Court decision declaring that Chief Justice Malaba had retired at on his 70th birthday was delivered on the 15th May 2021. The Government, the Judicial Service Commission [JSC] and Justice Malaba and the other judges cited as respondents in the case have appealed to the Supreme Court against the decision. Other court cases have been lodged in both the High Court and the Constitutional Court about the High Court decision and the validity of both Constitution of Zimbabwe Amendments Nos. 1 and No. 2.
Meanwhile the President, the Judicial Service Commission and the Minister of Justice, Legal and Parliamentary Affairs have been busy with judicial appointments to the Constitutional Court [on 20th May] and the Supreme Court [on 3rd June].
20th May 2021 : Constitutional Court Appointments
There were five vacancies on the Constitutional Court bench from 22nd May 2020. The cause of the vacancies was the automatic expiry on that date of the seven-year transitional period during which, in terms of the Constitution, the Constitutional Court was to consist of the Chief Justice and the Deputy Chief Justice and seven judges of the Supreme Court sitting together as a bench. After that transitional period, in terms of section 166 of the Constitution the Constitutional Court became an entirely separate court consisting of the Chief Justice, the Deputy Chief Justice and “five other judges of the Constitutional Court”, i.e., judges appointed specifically as judges of the Constitutional Court. As no such judges had been appointed, the Constitutional Court was left with only its two ex officio judges, i.e. the Chief Justice and Deputy Chief Justice.
As a temporary solution for this unworkable situation, the Chief Justice made five acting appointments to the Constitutional Court in terms of section 166 (2) of the Constitution, selecting the five most senior judges of the Supreme Court, Justices Garwe, Makarau, Gowora, Hlatshwayo and Patel. [Section 166(2) allows the Chief Justice to make such appointments for a “limited period” – which clearly means the period reasonably necessary for the procedure laid down by section 180(4) of the Constitution to be completed by the JSC: advertising the vacancies, inviting nominations from the public and the President, publicly interviewing qualified candidates, preparing a list of suitable candidates and submitting that list to the President for the President to make the appointments he wishes from that list.]
The JSC had been quick off the mark. Within days of the 22nd May last year the JSC began the process by advertising the vacancies publicly and inviting the public to nominate suitably qualified persons for appointment to fill the vacancies. The deadline given for receipt of nominations was 30th June 2020. In early August the JSC announced a list of twelve candidates to be interviewed in early September. The interviews were later postponed to the end of September, when eight candidates were interviewed, the other four having withdrawn for various reasons. Seven of the eight candidates were serving judges, including the five acting judges of the Constitutional Court. After the interviews the JSC promptly prepared the required list and submitted it to the President for him to make appointments to fill the vacancies.
But no appointments were made for the next seven months. Speculation as to the reason for this failure to complete the appointment process inevitably prompted the conclusion that the President was waiting for Parliament to pass the Constitution of Zimbabwe Amendment (No. 2) Bill, which once it was law, would amend section 180 of the Constitution to allow him greater freedom to appoint persons not on the JSC’s September list. The Bill was passed by Parliament on the 4th May 2021, signed by the President and was gazetted as an Act on the 7th May.
Nevertheless, the appointments announced on the 20th May 2021 were of the same judges who had been acting as judges of the Constitutional Court since 22nd May last year, Justices Garwe, Makarau, Gowora, Hlatshwayo and Patel, all of whom had been on the JSC’s September list, having gone through the elaborate procedure laid down by section 180 of the Constitution.
The five appointments, therefore, appear to be in accordance with section 180 as it was before Constitution Amendment No. 2 was gazetted.
3rd June 2021 : Six Supreme Court Appointments
An immediate consequence of the appointment and the swearing-in of the five Constitutional Court judges was that they ceased to be judges of the Supreme Court, creating five vacancies on that court. The President wasted little time in moving to fill the vacancies, plus an earlier unfilled vacancy caused by the removal from office of Justice Bere in October last year.
On the 3rd June the appointment of six new Supreme Court Judges by the President was announced and their swearing-in took place before Deputy Chief Justice Elizabeth Gwaunza. They were all sitting judges of the High Court: Justice George Chiweshe [elevated from Judge President of the High Court] and Justices Alphas Chitakunye, Samuel Kudya, Felistas Chatukuta, Joseph Musakwa and Hlekani Mwayera.
The JSC had not taken any of the preliminary steps necessary under section 180(4) of the Constitution in relation to the six vacancies, including that caused by the removal of Justice Bere [public advertisements of the vacancies, public interviews of nominated candidates, etc]. The significance of this is that the President must have relied on his new power under section 180(4a) of the Constitution as amended by the Constitution of Zimbabwe Amendment (No. 2) Act, 2021, only gazetted as law on the 7th May 2021. Section 180(4a) is as follows:
“… the President, acting on the recommendation of the Judicial Service Commission may, at any time whenever it is necessary to do so, appoint a sitting judge of the High Court … to be a judge of the next higher court”.
The “next higher court” above the High Court is the Supreme Court.
But, and it may well turn out to be a big but, the validity of the appointments depends on the validity of the Constitution of Zimbabwe Amendment (No. 2) Act, which is presently under fire in the courts, both as regards the manner of its passing by Parliament and as regards the legitimacy of its content. For example, the validity of the entire Act – and by extension section 180(4a) of the Constitution as inserted by the Amendment – is presently the subject of at least two cases in the courts. One of these cases, in which Veritas is an applicant, is in the Constitutional Court and it seeks a court order invalidating the whole of the Constitution of Zimbabwe Amendment (No. 2) Act. If the Constitutional Court grants this application, the six Supreme Court appointments will fall away as unconstitutional. Even if the Act itself survives this legal onslaught, section 180(4a) on its own is vulnerable to attack because it did not form part of the original Bill when it was first published in the Gazette but was added to the Bill unconstitutionally during its passage through Parliament.