Hosia Mviringi
The Judicial Service Commission has set July 26 to 28, 2021 as the dates for public interviews for aspiring High Court judges.
Following a call for nomination of suitably qualified persons for appointment, the Commission received a total of 36 valid nominations.
These will be publicly grilled to ascertain their suitability to occupy the esteemed office of Judge of the High Court of Zimbabwe.
“Following the invitation to members of the public and to His Excellency, the President, to nominate suitably qualified persons to be appointed as Judges of the High Court, in terms of section 180 (4) of the Constitution of Zimbabwe, the Judicial Service Commission received 36 valid nominations,” said the Judicial Service Commission in a statement to the press.
The public interviews which will be held at the Harare International Conference Centre have been split into three sessions of 12 interviews each over the three days with limited attendance by the public in observance of existing Covid-19 regulations.
*Writer`s Note*
The big question is why conduct Public Interviews given the recently passed Constitution of Zimbabwe Amendment Number 2 Act of 2021?
When the Act in question was passed on April 20, 2021, there was widespread public outcry over the purported repeal of Section 180 which deals with public interviews.
However it is important to note that the Constitution of Zimbabwe Amendment number 2 Act did not eliminate public interviews in totality.
What the Act eliminated are public interviews for purposes of promoting Judges to higher Courts such as the Supreme Court and the Constitutional Court.
The wisdom behind the move was that it was imprudent to rope in the public or to subject a serving judge to public scrutiny for purposes of appraisals for promotion to a higher office.
It is a known procedure that performance appraisal is based on or benchmarked against targets set out in one’s employment contract, of which the public knows nothing.
Only the employer, in this case, the Judicial Service Commission in consultation with the President, have the basis for performance appraisal for purposes of promotion to a higher Court.
Thus Amendment number 2 Act of 2021 sought to restore the dignity of the office and person of serving Judges, while in the process re-establishing the credibility of judicial officers in the country.
All judges at entry-level, that is to the High Court continue to be subjected to the rigours of public interviews.
This renders the public outcry ill ill-informed unnecessary.
The latest public interviews come in the wake of the recent promotion of senior judges to the Supreme and the Constitutional Courts.
Background
Effective May 22, 2020, there were five vacancies on the Constitutional Court bench following the automatic expiry of the seven-year Constitutional transitional period, during which, in terms of the Constitution, the Constitutional Court was to consist of the Chief Justice and the Deputy Chief Justice as ex officio members, and seven judges of the Supreme Court sitting together as a bench. At the expiry of 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.
The Judicial Service Commission, acting in urgency, moved with speed and started the process of advertising the vacancies and nominations yielded twelve suitably qualified candidates. The candidates were announced in early August 2020.
Of the eight successful candidates, seven were serving judges who included five Acting Judges of the Constitutional Court. These are Justices Garwe, Makarau, Gowora, Hlatshwayo, and Patel
For some reason, the appointment of successful candidates was only made by the President on May 20, 2021.
The immediate consequence of those appointments is that the five Judges cease to be on the Supreme Court bench.
On June 3, 2021, the President appointed six Judges to the Supreme Court. These were all sitting judges of the High Court.
Justices George Chiweshe, Alphas Chitakunye, Samuel Kudya, Felistas Chatukuta, Joseph Musakwa and Hlekani Mwayera. The six vacancies were in addition to one which was created by the earlier removal of Justice Bere from the High Court bench.
This leaves the Judicial Service Commission with one option to fill up the seven vacancies created on the High Court bench.
President Mnangagwa is empowered under the Constitution of Zimbabwe Amendment Number 2 Act to appoint judge’s to the higher courts, in consultation with the Judicial Service Commission.
Section 180(4a) reads 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 writer`s note is an editorial approach we adopt when a writer decides to proffer an opinion as an addendum to a hard new article they would have written. This approach allows our writers to play a dual role of being gatherers of news and public intellectuals. It is still in the pilot phase and its applicability will be tested over time – Editor**.
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