In an announcement posted on its website and published in newspaper advertisements the Judicial Service Commission [JSC] has invited members of the public to nominate suitably qualified persons to fill:
• 3 vacancies on the Supreme Court bench
• 3 vacancies on the High Court bench.
This is the first example, since the Constitution came fully into operation on 22nd August last year, of the new procedure for appointing judges being put into practice in accordance with section 180 of the Constitution. This section obliges the JSC, whenever judicial appointments are necessary, to advertise the vacant positions and to “invite the President and the public to make nominations.” So the President will have also have had an invitation.
This bulletin discusses the procedure for nominations from the public first, then moves on to a brief note on what happens after the receipt of nominations by the JSC.
Procedure for Nominations from the Public
The effect of the JSC advertisement is as follows:
The deadline for submission of nominations is close of business on Monday 14th April 2014.
The nomination form
The nomination form provided by the JSC should be used. It is obtainable from the office of the Secretary of the JSC, Old Supreme Court Building, corner Kwame Nkrumah Ave/Third St, Harare or from the office of a Provincial Magistrate in charge of a province. It is also available on the JSC website www.jsc.org.zw. [Veritas can also email you a copy – see addresses at the end of this bulletin.]
Submission of completed nomination forms
Completed nomination forms [one form for each nominee] must be delivered to the JSC at the address given above, OR to the office of a Provincial Magistrate in charge of a province OR by post to the Secretary of the JSC, P.O. Box CY 870, Causeway, Harare. Each nomination form submitted must have the nominee’s curriculum vitae attached.
Qualifications Required for Appointment as a Judge
The JSC advertisement sets out, but not quite accurately, the qualifications for appointment to these positions, as laid down by the Constitution in sections 178 [Supreme Court] and 179 [High Court]. [Note: The inaccuracy is in the advertisement’s rendering of section 179(1)(b)(ii), where the words “or English” should be deleted, leaving the word ”… the common law is Roman-Dutch and English is an officially recognised language”.]
The qualifications can be summed up as follows:
Qualifications applicable to all judges
To be appointed as a judge of either court a person must first:
• be at least 40 years old, and
• be “a fit and proper person to hold office as a judge”.
The other qualifications are as follows:
For appointment as a Supreme Court judge
The nominee must, in addition to the age and fitness qualifications just mentioned:
• be a Zimbabwean citizen, and
• EITHER have been judge of a court of unlimited civil or criminal jurisdiction in Zimbabwe or a country in which English is an officially recognised language and the common law is Roman-Dutch [e.g. South Africa] or English [e.g. Zambia] OR be currently and have been for at least 10 years, whether continuously or not, qualified to practise as a legal practitioner in Zimbabwe or a one of the other countries just mentioned.
Note: A non-citizen is not eligible at all. A person with no previous judicial experience can be appointed, but she or he would have to have at least 10 years’ standing as a qualified legal practitioner.
For appointment as a High Court judge
A person meeting the age and fitness qualifications can be appointed to the High Court bench, even if not a Zimbabwean citizen, if she or he:
• is or has been a judge of a court of unlimited civil or criminal jurisdiction in a country in which English is an officially recognised language and the common law is Roman-Dutch [e.g. South Africa] or English [e.g. Zambia] and English is an officially recognised language: OR
• is currently and has for at least 7 years, whether continuously or not, been qualified to practise as a legal practitioner in a country in which the common law is Roman-Dutch and English is an officially recognised language [e.g., South Africa].
In addition, a Zimbabwean citizen can be appointed to the High Court bench if she or he is currently and has for at least 7 years, whether continuously or not, been qualified to practise as a legal practitioner in a country in which the common law is English and English is an officially recognised language [England, Zambia].
Comment: This means that a Zimbabwean citizen with at least 7 years’ standing as a legal practitioner in, say, England or Zambia can be appointed as a High Court judge without being qualified to practise law in Zimbabwe or having any qualification in Roman-Dutch law, which is the common law of Zimbabwe.
The New Appointment Procedure
The procedure following the expiry of the period for receipt of nominations, is laid down in section 180(2) of the Constitution. The JSC must:
• conduct public interviews of prospective candidates, and
• prepare a list of three qualified candidates for each position, and
• submit the list to the President.
The President then make the necessary appointments from the list, unless he considers that none of the persons on the list are “suitable for appointment”. If he considers that none are suitable, he must communicate that to the JSC and require it to submit a further list of qualified persons, from which he must then make his appointments.
Comment: The President cannot appoint someone whose name has not been submitted by the JSC. This is very different from the position under the former Constitution, under which the President had to consult the JSC before making judicial appointments, but was free, if he wished, to reject its advice and appoint someone it had not recommended.
Note: The JSC has not its plans for holding the public interview process.
Correction of Error in Court Watch 3/2014
In describing the membership of the JSC, Court Watch 3/2014 of 17th February incorrectly stated that the full complement of JSC members is 12; the correct figure is 13. The list of members should have included the following item at the end:
Expert in human resources management appointed by the President
Documents Available from Veritas in Soft Copy
[see addresses at end of bulletin]
JSC advertisement [available from 18th March]
Nomination form for Judicial Appointments [available from 18th March]
Constitution of ZimbabwePost published in: Politics