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Dr Masimba Mavaza
Judicial independence is a central goal of most legal systems, and systems of appointment are seen as a crucial mechanism to achieve this goal.
While there is near-universal consensus on the importance of judicial independence as a matter of theory, legal systems utilise a wide range of selection mechanisms in practice, often reflecting slightly different conceptions of independence.
The diversity of systems of judicial selection suggests that there is no consensus on the best manner to guarantee independence. In most democracies, if not all, judges are appointed by the President or by the ruling party.
The legislature must legislate what is legislatable. Without support of the other arms of Government, governing becomes difficult. Therefore the President must be allowed to choose his team.
However, we should bear in mind that judges are professionals and despite who appoints them, they remain professional. We do not expect them to give judgments that are politically correct.
The saga in the appointment of the Chief Justice and the flagrant disregard of directions by the JSC opened a Pandora’s box. It exposes the JSC as a dictatorial stubborn entity.
University of Zimbabwe student Romeo Zibani sought an interdict to stop the JSC from conducting public interviews of candidates for the post of Chief Justice. Justice Charles Hungwe ruled on the matter, stopping the interviews.
However, this was disregarded by the JSC. The reason was more corrupt than legal. The court has a right to stop any proceedings if an objection is raised.
The interdict was interim and no harm would have been caused by waiting. Ignoring this was mischievous and contemptuous.
The sham and constitutional disaster was to give the justice system to the hands of officers who appoint people as reward for submission under the guise that they were appointed by the public.
Public interviews are public and not intense. The JSC becomes a rebellious group dressed in justice and openly disregarding orders from courts in a desperate move to cover their corrupt ways.
The JSC was trying to protect its own interests. The comission was aware that Clause Six of the Bill amends Section 180 of the present Constitution by providing that the President’s choice of Chief Justice, Deputy Chief Justice and Judge President of the High Court be final should there be differences of choices between his nominee and those recommended by JSC.
It is clear that the JSC is playing dirty in its power hungry ways by creating a crisis and trying to appoint a Chief Justice right in the face of an amendment.
The JSC’s hurry contemptuously exposed their dirty cupboards. If this lunacy is allowed to continue, they will continue to feed their power hungry escapades.
The JSC had hoped to put a Chief Justice of their choice in place so that the secretary and the deputy could come from their own team.
At this rate, they are likely to create a judicial problem. We should realise that even if the judges are to be appointed by the President, they remain independent from the Government branches or politicians.
They will remain independent from political ideology or public pressure more broadly defined. They remain independent such that they can decide each case on their own best view of what the law requires.
The Bill which the JSC tries to circumvent brings a system of appointing judges in light of the need for an independent, accountable and diverse judiciary. It first considers the major systems for appointing judges which is giving the power back to the President, this brings in the questions of judicial discipline.
Most civilised countries use different systems of appointing judges for different levels of court. A common configuration for countries in the civil law tradition, which utilises a bureaucratic model of the judiciary, is some version of appointment by a judicial council for lower level judges, with a more political process being used for the supreme or constitutional court.
The US system uses election for some state judges but not at the Federal level. Internal variation is therefore possible.
In many countries, the Head of State appoints judges as a formal matter, but nomination or actual selection is done by another institution, such as the legislature, executive or the judiciary itself.
However, it is also possible that judges will be seen as the agents of those who appointed them. For example, justices appointed by the Parliament might be perceived to be favoring the Parliament in disputes with the executive.
This system focuses on the collective nature of the court to ensure independence and accountability. In the proposed Bill, a single political institution dominates the formation of judicial power base and empires.
It should be noted that The German Constitutional Court is effectively appointed by the Parliament, with each house of the legislature appointing an equal number of members to the Constitutional Court.
The German system uses super-majority requirements, so that a two-thirds vote is required. This has led to a norm of reciprocity that has established de facto permanent seats on the Constitutional Court held by the major parties.
Each of the two largest parties has an equal number of seats. The norm produces a stable court that reflects broad political preferences without over-representing either of the two main factions.
This version of the legislative-centered system is stable because the party system is stable. lf the parties were less stable or if there were numerous small parties rather than a few large ones, the supermajority requirement might make appointments more difficult or even impossible.
In our case, if the JSC is allowed to run in disregard of the law, individual judges may be less independent. Furthermore, the system is seen as providing very little accountability.
Many of these judiciaries have become extensively involved in politics in ways that can undermine their own legitimacy. They have become either factional or simply opposition.
The JSC has compromised its position and must be investigated.
JSC must be a body that is designed to insulate the functions of appointment, promotion, and discipline of judges from the partisan political process while ensuring some level of accountability. But alas, they have become a barrel of political stink.
They lie somewhere in between the polar extremes of letting judges manage their own affairs and the alternative of complete political control of appointments, promotion, and discipline. Perhaps because they promise a happy medium between these extremes,
JSC was designed to enhance independence of judiciary by removing judicial management from partisan politics.
lt is a constitutional body that deals with matters affecting the Judiciary. In terms of section 190 of the New Constitution, the JSC should advise Government in matters relating to Judiciary or its administration of justice and to promote and facilitate the independence and accountability of the judiciary.
Sadly, the JSC has become a direct opposite of its mandate.
The administrative arm of the JSC has set itself in a coalition path with the Government that it is supposed to advise.
If the JSC can run the magistracy with such blatant corruption, God knows what will happen if they are to recommend the Chief Justice.Their behaviour is a bad example to the law.
Dr Masimba Mavaza is a law lecturer based in the United Kingdom. He is a former prosecutor in the Ministry of Justice and Legal Affairs in Zimbabwe and has lectured at the Zimbabwe Republic Police Staff College and Zimbabwe Staff College.
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