The judiciary is one of the three main branches of government, the other two being the Legislature (i.e. Parliament) and the Executive (the President, Ministers, the Public Service, the Police and Defence Forces). The judiciary consists of all judicial officers, namely, the people such as judges and magistrates who decide civil and criminal cases in courts.
In Zimbabwe the main courts are the Supreme Court and the High Court, which are presided over by judges, and magistrates courts which, as their name suggests, are presided over by magistrates. There are also local courts which administer customary law; these comprise primary courts (i.e. headmen’s courts) and community courts (i.e. chiefs’ courts). In addition there are other specialised courts such as the Administrative Court, which deals with applications and appeals under various Acts of Parliament, and the Labour Court which deals with labour matters. These courts are presided over by their own judicial officers, i.e. by people who are appointed to preside over the courts on a full-time basis. In addition there are other specialised courts such as the Fiscal Appeal Court, the Special Court for Income Tax Appeals, presided over by judges, and the Maintenance Court, presided over by magistrates.
All members of the judiciary, other than chiefs and headmen, are under the administrative control of the Judicial Service Commission, which is chaired by the Chief Justice.
Importance of the Judiciary
An independent judiciary is essential if the rule of law is to prevail. The concept of the rule of law was dealt with in an earlier Constitution Watch, but briefly it exists where:
• no one can be punished unless a court has declared that he or she has been guilty of a breach of the law;
• everyone is equally subject to the law, and no-one is above the law; and
• the courts and the law-enforcement agencies enforce and apply the law impartially.
Obviously, if these conditions are to exist there must be an effective and independent court system.
The rule of law is not the same as democracy, because it is theoretically possible for the rule of law to be respected even by an undemocratic government, but it is hard to envisage a truly democratic society in which there is no rule of law. So, because an effective and independent court system is essential for the rule of law, and because respect for the rule of law is an important element of a democratic State, one can say that a functional and independent court system is vital for a truly democratic State to exist.
Despite its importance, the judiciary is the weakest arm of government. It depends on the other branches to be able to function at all. Court officials are paid out of funds allocated by the Executive and Parliament; in criminal cases, the co-operation of the police is vital; and the enforcement of court decisions, both civil and criminal, depends on people who are employed by the Executive. If the Executive chooses to disregard a court decision – as has happened frequently in this country – there is little the courts can do about it, other than protest.
If the new constitution is to form the basis of a truly democratic society in Zimbabwe, it must seek to strengthen the independence, effectiveness and integrity of the judiciary. It can do this in the following ways:
1. by ensuring that members of the judiciary are selected through an impartial process;
2. by ensuring that, so far as possible, suitably qualified and non politically partisan people are appointed to the judiciary;
3. by giving members of the judiciary security of tenure to protect them from undue influence exerted by the Executive and the Legislature;
4. by providing suitable mechanisms to ensure that members of the judiciary carry out their work efficiently;
5. by ensuring that members of the judiciary observe high standards of ethical conduct.
Selection of the Judiciary
Current system in Zimbabwe
Under section 84 of the present Constitution, the Chief Justice and the other judges of the Supreme Court and High Court are appointed by the President after consultation with the Judicial Service Commission (JSC). If the appointment of any of these judges is not consistent with a recommendation made by the JSC, the President must inform the Senate of that fact. The Constitution does not say what the Senate is expected to do in such a situation, so presumably there is nothing it actually can do, even if it does not agree with the President. This means, in effect, that the President can appoint whoever he likes, even if the JSC has recommended otherwise.
Judicial officers who preside over the specialised courts mentioned above (the Administrative Court, the Labour Court, etc.) are appointed by the President after consultation with the JSC (section 92 of the Constitution), though there is no provision for the President to inform the Senate if he goes against a recommendation made by the JSC. Magistrates are appointed directly by the JSC (section 7 of the Magistrates Court Act).
The JSC consists of the Chief Justice or his or her deputy, the chairperson of the Public Service Commission, the Attorney-General and between two and three other members appointed by the President (section 90 of the Constitution). No member of the JSC, therefore, is independent of the direct or indirect influence of the executive (but, as indicated above, even if the JSC was genuinely independent it would not matter anyway). Not surprisingly, there have been repeated allegations that judicial appointments and promotions have been politically motivated.
How can the new constitution improve the selection process?
Internationally, there are two main ways of selecting members of the judiciary: election and appointment.
System 1: Electing members of the judiciary
If the principle to be observed in a democracy is that all legal and political authority derives from the people, then logically the people should elect, not only members of the Executive and the Legislature, but members of the judiciary as well. Most countries do not have judicial elections, however, prominent exceptions being the some States of the United States, Japan and Switzerland.
Advantages and disadvantages of judicial elections are the following:
• Legitimacy: The election of judges gives them sufficient legitimacy to be co-equal with the other branches of government.
• Accountability: Elections make judicial officers more democratically accountable. Elected judges are likely to be more in tune with public opinion.
• Transparency: Judicial elections are more competitive, open and fair than most appointment procedures.
• Lack of professionalism: Ordinary voters do not have enough information to pick the best judges. They may not appreciate the professional qualities required for a judge, and judicial candidates cannot voice their opinions like candidates for political office (it would be improper for a candidate judge to pander to the electorate’s baser instincts by promising to hang all murderers and rapists, or to penalise the rich).
• Political influence: Elected judges will be tempted to give judgments that will ensure their re-election; this is the obverse side of accountability.
• Corruption and bias: Although the election of judges does not inherently require political partisanship, there is a danger that elected judges become too closely aligned to political parties or individuals who contributed to their election campaigns.
The fact that few countries have chosen to have a system of elected judges is most telling. If electing judges was a self-evidently superior system, one would expect it to be in much greater use, but very few countries have such a system. Judges and magistrates are usually appointed, subject to safeguards to ensure their independence, by the Executive or the Legislative branch, or by both branches.
System 2: Appointing members of the judiciary
If judges and magistrates are to be appointed, the questions arise: who should appoint them? What procedures should be followed?
Appointment by whom?
Usually, the appointment of judges is, at least formally, made by the head of State. In the case of magistrates and other junior judicial officers the appointment may be made by other authorities. In Zimbabwe before June last year, magistrates were appointed by the Public Service Commission because they were part of the Public Service; now they are appointed by the JSC.
There seems no reason to change this position: under the new constitution senior judicial officers should continue to be formally appointed by the head of State, while junior officers should be appointed by the JSC or whatever other body is created to oversee the judiciary. What needs to be changed is the pre-appointment procedures for selecting appointees (see above) and procedures for appointment.
Little or no formal process
In Canada and Australia, judges are appointed by the head of State (the Governor-General) acting on the advice of the Cabinet which is conveyed to him or her through the Prime Minister. In Canada an advisory committee is formed whenever a vacancy occurs on the Supreme Court bench, and this allows for greater consultation though it does not fundamentally alter the largely informal process.
In India judges of the Supreme Court are appointed by the President in consultation with the Supreme Court, and appointments are generally made on the basis of seniority and not political preference. Judges of state High Courts are appointed by the President in consultation with the Chief Justice of India and the governor of the state concerned.
While in these countries the Executive theoretically has a great deal of freedom in choosing judges for the highest court, it needs to be remembered that they are all strong democracies with a vigorous free press. Consequently, politicians must act with caution.
Defined formal process
In the United States, Supreme Court justices, and judges of Federal appeal courts and district courts, are nominated by the President and confirmed by the United States Senate. The Senate Judiciary Committee typically conducts confirmation hearings for each nominee. The system is open to criticism: the hearing process, for one thing, is said to be intrusive and time-consuming; Senators try to get candidates to commit themselves to a particular line on contentious issues; and nominations are very much affected by the President’s own political outlook.
In the United Kingdom a Judicial Appointments Commission is responsible for selecting judges in England and Wales. It is a independent statutory body made up of 15 members of whom nine are drawn from the judiciary and the legal profession and six are lay-people. The Commission interviews applicants and selects them on merit measured by five core qualities: intellectual capacity, personal qualities (integrity, independence, judgement, decisiveness, objectivity, ability, willingness to learn), ability to understand and deal fairly, authority and communication skills, and efficiency. Successful candidates are formally appointed by the Lord Chancellor (not the head of State).
In South Africa judges of the Constitutional Court are appointed by the President after consultation with the JSC and the leaders of parties represented in the National Assembly (the President is free to disregard their opinion). The candidates for appointment are chosen from lists prepared by the JSC after public interviews. The President appoints judges of the Supreme Court of Appeal and the various High Courts on the advice of the JSC (he must follow the advice) and he appoints the Chief Justice, the President and Deputy President of the Supreme Court of Appeal after consultation with the JSC (but can disregard its opinion).
The South African JSC is a large body comprising judges, members of the legal profession, the Cabinet and members of both Houses of Parliament; when it considers appointments to a provincial High Court, it includes the premier of the province concerned and the judge heading that High Court. Hence the legal profession, the public and politicians all have a say in the appointment of judges.
To be continued in Part IIPost published in: Politics