Constitution Watch Content Series 11/2011

The Judiciary Part II

Qualifications of Judges

In Australia and South Africa, the qualifications for appointment as a judge are not specified with any precision. The South African Constitution requires the JSC to take into account “the need for the judiciary to reflect broadly the racial and gender composition of South Africa”. In Zimbabwe the qualifications are that the appointee must either:

• have been a judge of a superior court in a foreign country where the common law is Roman-Dutch or English, and English is an official language, or

• have been qualified to practise as a legal practitioner in Zimbabwe for at least seven years.

These qualifications seem reasonable. Should the new constitution specify any others – such as, age, race or gender, political opinions or background?

• Age: It seems unnecessary to specify a minimum age for appointment to the Bench. If a candidate has already served as a judge in a foreign country, or has been qualified to practise in the legal profession for seven years, then he or she should be mature enough to serve as a judge. The question of a maximum age for judges will be dealt with later, under security of tenure.

• Race or gender: Should there be any racial or gender considerations, as required in South Africa? There are arguments for and against this sort of affirmative action. Race should be irrelevant 31 years after independence. While women constitute a little over 50 per cent of the population, the same does not apply to the legal profession so there is smaller pool of qualified person to choose from. Gender balance is desirable on the Bench. What must be avoided, however, is over-emphasis of a person’s gender at the expense of his or her ability and suitability for the office. The appointment of judges who are not highly skilled is more likely to undermine public confidence in the administration of justice than the appointment of an unrepresentative judiciary.

• Political opinions: Selection on the basis of a candidate’s known conservative or liberal tendencies (as in the US) should be avoided. Lawyers, like anyone else, have their views on political and social issues, but a conscientious judge will avoid letting these views affect his or her decisions. A litigant or accused person should not feel that the case will be determined because of the judge’s political views.

• Disqualification of former politicians: Zimbabwe has a long tradition of appointing former Ministers of Justice to the Bench. Some have been good judges, some have not. There is no reason in principle why former politicians should not be considered for appointment as judges, but a sideways step from ministerial office to the Bench gives the impression (a) that the appointment is a reward for political services; and (b) that the appointee’s former political allegiance will be reflected in his or her decisions.

Protection from Undue Influences

Three core characteristics of judicial independence are said to be:

1. Security of tenure;

2. Financial security; and

3. Administrative independence.

Security of tenure

A constitution can give judges security of tenure by fixing clearly their terms of office and ensuring that they cannot be removed from office without good cause.

Term of office

How long should a judge stay in office? There are three possibilities:

• Life tenure

• Tenure for a specified term

• Tenure until retirement at a prescribed age.

The debate over which of these to adopt centres on the need to remove senile and debilitated judges from office, as against the need to retain experienced and learned judges who are healthy enough to continue serving.

Giving judges life tenure creates the risk of judges who are clearly incompetent remaining in office well beyond their useful time. In the United States, judges of the Supreme Court and Federal Court have life tenure. The retirement age for judges in state courts in the United States is variable; a number of states have no mandated retirement ages, while others range from 70 to75 years of age.

Most other countries have an upper age limit, after which a judge must retire. Zimbabwe has the relatively young retirement age of 65, with a possible extension to 70 if the judge so elects and produces a medical report showing that he or she is mentally and physically fit to continue in office (section 86(1) of the Constitution). Any specified retirement age is inevitably an arbitrary figure. There is usually no scientific or sociological reason to pick on a particular age as the time when an individual should retire.

The third option – tenure for a specified period – appears to be unusual. Only the Constitutional Court of South Africa seems to have adopted that system. Judges of that court hold office for a non-renewable term of twelve years or until they reach the age of 70 years, whichever occurs first. The idea was to ensure a regular rotation of judges in the Constitutional Court, so that constitutional interpretation reflected changing attitudes of society.

Removal from office and grounds for removal

Obviously judges sometimes have to be removed from office, and the grounds for doing so and the procedure to be followed should be laid down in the constitution.

In Zimbabwe, a judge may only be removed from office for inability to discharge the functions of his office, whether arising from infirmity of body or mind or any other cause, or for misbehaviour (section 87 of the Constitution). These grounds are similar to those specified in many other countries such as Botswana, Zambia, Namibia, Australia, Canada and India; South Africa and Uganda add gross incompetence as a further ground.

“Misbehaviour” is not defined in our Constitution or in any of the constitutions mentioned in the previous paragraph, but it can be taken to mean misbehaviour in matters concerning the office of judge and would include a conviction for an offence that would render the person unfit to carry out judicial functions.

Official misconduct and neglect of official duties would probably constitute misbehaviour. Whether incompetence (in the sense of persistently reaching illogical or perverse decisions) would constitute misbehaviour is less than clear, but it could arguably be regarded as inability to discharge the functions of the office. A poor legal knowledge may also fall into this category.

The new constitution should state the grounds for removal of judges as broadly as they are stated in the present Constitution, but should perhaps add gross incompetence as a further separate ground. And, if a judicial code of ethics is formulated (see below), serious breaches of that code should constitute misbehaviour meriting removal from office.

Procedure for removal from office

In most constitutions the procedure for removing judges from office is lengthy and cumbersome, which ensures that judges cannot be lightly threatened with removal.

In Zimbabwe, if the President considers that the question of the removal from office of the Chief Justice ought to be investigated, he must appoint a tribunal under section 87 of the Constitution to inquire into the matter. All the members of the Tribunal are chosen by the President; most are judges or former judges, but the President can appoint one or more legal practitioners nominated by the Law Society. However, he does not have to do this.

If the tribunal recommends that the President should refer the question of removing the judge to the JSC, the President must do this; and if the JSC recommends the judge’s removal the President must remove him or her from office.

The Constitution does not provide any formal system whereby allegations of misconduct may be made by professional bodies or by members of the public. It is possible, presumably, for a complaint to be made to the JSC and for it to investigate in terms of section 15 of the Judicial Service Act. It could then refer the complaint to the President or the Chief Justice. As mentioned above, the JSC is not genuinely independent, so the whole process of removing judges from office is very much in the hands of the Executive.

Under the South African Constitution, a judge may be removed from office only if the JSC has found that the judge suffers from incapacity, is grossly incompetent or is guilty of gross misconduct, and if the National Assembly passes a resolution by a two-thirds majority calling for the judge to be removed.

Under the new constitution there should be a more open system of bringing allegations of misconduct against judges. The South African example seems a good one to follow. Whatever procedure is adopted in the new constitution, it should apply to magistrates and other judicial officers, not just to judges.

Financial security

Financial security, the second core element of judicial independence, should mean:

a. that the judge’s income is not reduced while he or she holds office; and

b. that judges’ recompense is adequate (bearing in mind that accepting judicial office almost invariably means a drop in income) and appropriate for the work and responsibility. The salary should be such that there is not even the temptation, let alone the need, for a judge to have a sideline business or to receive rewards that may raise doubta about his or her impartiality.

Ensuring financial security can present problems, particularly when inflation erodes judges’ salaries. In Zimbabwe there is no legislative or constitutional provision compelling the executive or legislature to adjust judicial salaries for inflation. Some provision of this sort needs to be inserted in the new constitution, so that we do not again see such things as occurred in recent years, where the Reserve Bank bought luxury goods for the judges.

Administrative independence

In most countries that follow the Westminster system of government, the courts are administered by the Executive, that is to say, the registrars and clerks who do the administrative work to keep the courts functioning are members of the public service employed or at least paid by the Executive. In Zimbabwe since the Judicial Service Act came into operation in June last year, they have fallen under the control of the Judicial Service Commission. It is debatable whether this is necessary for judicial independence. In other countries the courts have remained independent despite executive administration of the courts; and even if the courts are given administrative autonomy they inevitably lack financial autonomy because they are funded from money allocated by the Executive and Parliament. The independence of the judiciary is best maintained by the character of the judges themselves rather than through administrative autonomy.

Ensuring an Effective Judiciary

There is little that a constitution can do directly to ensure the judiciary does its work efficiently. Handing administrative control over the courts to the judiciary in the form of the JSC is unlikely to enhance judicial independence, as pointed out above, and it is unlikely to improve efficiency either. Good judges are not necessarily good administrators. Lack of finance has been cited as one of the reasons for the sclerosis affecting Zimbabwe’s court system. The new constitution must contain a provision obliging the government to provide the judiciary with sufficient funds.

Perhaps the best the new constitution can do is to permit the JSC to lay down standards of efficiency to be observed by judicial officers, for example, requiring them to be reasonably diligent, to attend court when required, to work normal business hours, and perhaps to complete their case-loads within a reasonable time. A judicial officer who fails to observe these standards should be liable to disciplinary action and ultimately dismissal.

Code of Ethical Conduct

The Zimbabwean judiciary no longer enjoys the high reputation for integrity it had in the years immediately after Independence. There are good reasons for this. The economy deteriorated from the mid-1990s, eventually making it impossible for judicial officers to make ends meet on their official salaries. This compelled them to engage in other activities such as commercial farming and trading, and made them more open to undue influence. The absence of an official code setting out clear rules of ethical conduct made it more difficult for judicial officers to resolve the serious ethical dilemmas with which they were faced. The new constitution should oblige the JSC to draw up such a code and should make it enforceable. Breaches of the code, in other words, should be declared to be misbehaviour justifying disciplinary action.

Final considerations

No matter what fine-sounding provisions are inserted in the new constitution to secure judicial independence, such independence is meaningless if the Executive does not respect the rule of law. Where the Executive can direct the police not to investigate clear offences and not to obey court orders that the Executive does not like, the rule of law does not exist.

Post published in: Politics

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