Appointment of Zimbabwe judges opens can of worms

LEGAL experts have demanded that the Judicial Service Commission (JSC) releases the scoresheets of candidates who were publicly interviewed for four advertised Supreme Court judges' vacancies, as they seek an explanation from President Emmerson Mnangagwa as to why he appointed only two judges instead of four last month.

The lawyers also want to know whether Justices Francis Bere and Lavendar Makoni, who were last month appointed to the Supreme Court bench, passed the interviews.

Eight High Court judges, namely Bere, Makoni, Justices Charles Hungwe, Alfas Chitakunye, Samuel Kudya, Nicholas Mathonsi, Joseph Mafusire and Justice Priscilla Chigumba, were interviewed two years ago to fill four vacancies on the Supreme Court bench.

The positions were advertised by public notice in June 2016, while the interviews were conducted on September 29 2016.

Prominent human rights lawyer Beatrice Mtetwa told the Zimbabwe Independent this week she intends to challenge the JSC to disclose the scoresheets, as answers are sought as to why Mnangagwa appointed only two Supreme Court judges.

"I made a request for the scoresheets from JSC and they refused to give me this on the basis of confidentiality. I am challenging that and going to court for an order to force them to disclose the scoring. If the President appointed outside the JSC scoresheet, I will definitely challenge that," Mtetwa said.

"The way they are doing it makes a mockery of the constitution and holding public interviews a charade. What is the point of holding public interviews when the President can disregard the JSC recommendations?

"And how can the results of a public process be confidential? And when did such confidentiality start as the results of the CJ interviews were made public? Basically, we are back to the old constitution where the President can appoint whoever was interviewed even if that person was bottom of the list."

Buttressing Mtetwa's argument, Advocate Tererai Mafukidze told the Independent this week that Mnangagwa has a duty to explain why he appointed two judges out of the names submitted to him for four vacancies at the Supreme Court.

"On September 29 2016, the JSC held interviews of eight judges for four vacancies on the Supreme Court bench. For more than one-and-a-half a years, the President did not make his pick from the JSC list. Recently, two of the eight candidates were appointed Supreme Court judges. There are serious questions. Former president (Robert) Mugabe's failure for more than a year (October 2016 toNovember 2017) to exercise his constitutional duty to pick from the JSC constitutes a breach of section 324 of the constitution which requires 'all constitutional obligations to be performed diligently and without delay'," Mafukidze said.

"Where the JSC has advertised more than one position on the Supreme Court bench, it must submit to the President a list of qualified nominees matching in number the number of existing vacancies, plus two. This means that where the Supreme Court has four vacancies the JSC must submit a list of six names to the President.

"If the JSC submitted six names, the President should have filled the four vacancies unless he considered under section 180 (3) that the remainder were unsuitable. In that case, his only remedy is to retain the list to the JSC which should in turn submit a further list. Once the second list is submitted, the President has no power to refuse to appoint from that list."

Mafukidze said a number of questions are supposed to be answered by the respectable authorities so as to prove their transparency as required by the Constitution.

"If there were four vacancies, six names should have been submitted to the President. Were six names submitted? Did the new President decide to fill a lesser number of vacancies? There a constitutional danger of the Executive exercising greater power than permitted by the Constitution. Did the President deem some of the recommended unsuitable? If so, has he communicated this to the JSC? Is the JSC to supplement the list of the balance in terms of section 180(3) to fill in the remaining two vacancies? Or did the JSC find during the September 2016 interviews that of the eight candidates only less than six candidates were worth recommending?" he said.

Mafukidze added: "The 2013 Constitution seeks to depart from the opaque judicial appointment processes that were witnessed since Independence. The JSC is specifically required by section 191 of the Constitution to "conduct its business in a just, fair and transparent manner.

"This must be read in the light of section 62(1) of the constitution which guarantees every Zimbabwean citizen or permanent resident, including the media, the 'right of access to any information held by the State or by any institution or agency of government at every level, in so far as the information is required in the interests of public accountability.' The President and the JSC would be in serious violation of the Constitution if they elect secrecy over accountability."

This is not the first time Mnangagwa has been criticised for unprocedural appointments. In his first cabinet appointment, Mnangagwa appointed eight unelected ministers instead of five before he was forced to reverse his decision.

Although this was later rectified, it was a violation of section 104(3) of the constitution that states that the President must pick his cabinet from elected members of the Senate and National Assembly, but he has leeway in appointing five individuals who are not from either house for their professional skills.

Mnangagwa has also been criticised for placing the Civil Service Commission under his office, in violation of section 201 of the constitution and also unlawfully appointing a prosecuting panel under his office.