News / National
Court dismisses judges' appointment challenge
29 Jun 2021 at 19:08hrs | Views
HIGH Court judge Justice Tawanda Chitapi last Friday dismissed an application by University of Zimbabwe law student Chamunorwa Chingwe, who sought to bar President Emmerson Mnangagwa from appointing Supreme Court and Constitutional Court judges.
Chingwe had also proposed that the Judicial Service Commission (JSC) be ordered to consider practising lawyers for appointment as judges of the two apex courts.
The judges were, however, appointed a day before his application was to be heard.
Mnangagwa appointed the Judge President Justice George Chiweshe, and Justices Samuel Kudya, Alpheous Chitakunye, Felistas Chatukuta, Hlekani Mwayera and Joseph Musakwa to the Supreme Court bench.
In his ruling delivered on Friday, Justice Chitapi said the application had been overtaken by events, adding that the requests by Chingwe were legally invalid.
"Therefore, having found that the provisional order sought is legally incompetent in that the court cannot prescribe how constitutional functions reposed in a constitutional body should be exercised by that body unless there exists in the Constitution or other legislation reference on how the function must be exercised, the locus standi of the applicant becomes inconsequential," the judge said
He said he had considered that Chingwe acted precipitously in filing the application because it was legally incompetent to order how the respondents were supposed to carry out their functions.
"The court would have a right to review the actions done after the event. The applicant stated that he was acting in his own interest. He stated that his interest arose from his desire to correct procedure being followed to ensure that only the best and meritorious judges are appointed to the Supreme Court and Constitutional Court because the applicant was a litigant who would have his cases decided in those courts," Justice Chitapi said.
"I don't unfortunately consider it necessary under the circumstances and the approach I have adopted to answer the issue of degree of proof needed. I have answered the issue by stating that whether the person who filed the incompetent application has legal status or power to petition the court. The other matter requiring comment is the fact that the judges were appointed anyway. Therefore, what was intended to be achieved by this application was overtaken by events."
In his application, Chingwe, who was represented by the Zimbabwe Human Rights NGO Forum, had wanted Mnangagwa and JSC to be compelled to adhere to section 180(4) of the Constitution before the appointment of the Supreme Court judges to enable persons who are not sitting judges of other courts to be considered for such appointments.
Mnangagwa appointed the judges after he accented to the enactment of Constitution of Zimbabwe Amendment (No 1) Act, which gives him the greenlight to appoint judges without them undergoing public interviews. The constitutional amendments are being challenged at the Constitutional Court.
Chingwe had also proposed that the Judicial Service Commission (JSC) be ordered to consider practising lawyers for appointment as judges of the two apex courts.
The judges were, however, appointed a day before his application was to be heard.
Mnangagwa appointed the Judge President Justice George Chiweshe, and Justices Samuel Kudya, Alpheous Chitakunye, Felistas Chatukuta, Hlekani Mwayera and Joseph Musakwa to the Supreme Court bench.
In his ruling delivered on Friday, Justice Chitapi said the application had been overtaken by events, adding that the requests by Chingwe were legally invalid.
"Therefore, having found that the provisional order sought is legally incompetent in that the court cannot prescribe how constitutional functions reposed in a constitutional body should be exercised by that body unless there exists in the Constitution or other legislation reference on how the function must be exercised, the locus standi of the applicant becomes inconsequential," the judge said
He said he had considered that Chingwe acted precipitously in filing the application because it was legally incompetent to order how the respondents were supposed to carry out their functions.
"The court would have a right to review the actions done after the event. The applicant stated that he was acting in his own interest. He stated that his interest arose from his desire to correct procedure being followed to ensure that only the best and meritorious judges are appointed to the Supreme Court and Constitutional Court because the applicant was a litigant who would have his cases decided in those courts," Justice Chitapi said.
"I don't unfortunately consider it necessary under the circumstances and the approach I have adopted to answer the issue of degree of proof needed. I have answered the issue by stating that whether the person who filed the incompetent application has legal status or power to petition the court. The other matter requiring comment is the fact that the judges were appointed anyway. Therefore, what was intended to be achieved by this application was overtaken by events."
In his application, Chingwe, who was represented by the Zimbabwe Human Rights NGO Forum, had wanted Mnangagwa and JSC to be compelled to adhere to section 180(4) of the Constitution before the appointment of the Supreme Court judges to enable persons who are not sitting judges of other courts to be considered for such appointments.
Mnangagwa appointed the judges after he accented to the enactment of Constitution of Zimbabwe Amendment (No 1) Act, which gives him the greenlight to appoint judges without them undergoing public interviews. The constitutional amendments are being challenged at the Constitutional Court.
Source - newsday
