Judge quits as tribunal is sworn in

THE swearing in of a tribunal to investigate the suitability of Bulawayo High Court judge, Justice Martin Makonese, to hold office following allegations of improper behaviour triggered his resignation within hours of the ceremony being held at State House in Harare yesterday.

Justice Makonese quit immediately after President Mnangagwa swore in the tribunal chaired by retired judge Justice Simbi Mubako.

Justice, Legal and Parliamentary Affairs Permanent Secretary Mrs Virginia Mabhiza confirmed that Justice Makonese had submitted his resignation through his lawyers. There is still the formal notification process through the Judicial Service Commission before the tribunal can be stood down, with any further legal action concerning the judge having to be done through other processes.

Justice Makonese was accused of issuing an order in a coal mine dispute in which he allegedly had a financial interest, allegedly making the order without any outside application before him and without the knowledge of lawyers of the two other parties in the dispute.

He is the fifth judge to leave office in recent years either as a result of tribunal recommendation to the President or as a result of a tribunal being appointed by the President.

This rate of departure from the bench has raised queries about how judges are appointed. There are suggestions that the system introduced in the 2013 Constitution may need further revision.

Both Mrs Mabhiza and Justice Mubako, who has chaired most of the tribunals, said the rising frequency of recommendations for tribunals was of concern, with Mrs Mabhiza suggesting that the new system of creating a short list through applications followed by public interviews may not be as effective as it should be while Justice Mubako considered continuing with what was there but trying to make it work better.

Yesterday at State House, President Mnangagwa, in line with the Constitution after receiving a recommendation from the Judicial Service Commission, swore in a three-member tribunal led by Justice Mubako to investigate the suitability of Justice Martin Makonese to hold office.

The other two members of the tribunal are the Executive Dean of the Midlands State University's Faculty of Law, Dr Gift Manyatera and well-known senior lawyer Philippa Philips.

President Mnangagwa said the Judicial Service Commission, in a letter on March 9, formally advised him of the request of removal from office of Justice Makonese. That triggered the process whereby the President then has to appoint a tribunal of lawyers chaired by a judge or retired judge to investigate.

Speaking after the tribunal swearing in ceremony, Mrs Mabhiza said the frequency of the tribunals was worrying and showed that something needed to be done to improve the conduct or selection of some judges.

She said the present system of creating the short list for the final selection by the President might be need to be improved and perfected.

In the earlier system, the Judicial Service Commission took soundings within the legal and judicial communities and vetted potential High Court judges confidentially and then approached the ones thought suitable to see if they agreed to having their names go forward. Now potential judges need to apply and go through a process that includes public interviews.

Promotions to the Supreme Court and Constitutional Court benches have now returned to the older system where judges no longer apply for promotion, following a recent constitutional amendment, but are once again confidentially assessed with the best going forward to the final short list.

"The new system of interviews unfortunately seems to be bringing on board some people who are not of good integrity. I am not saying they are not of good integrity but one can make that conclusion as you can see the frequency judges are coming for tribunals," Mrs Mabhiza said.

She said the appointments had to be done in accordance with the Constitution.

"Precisely it is an issue which may be taken to the people since our Constitution is people driven and we may also want to hear views from the justice sector as to whether we should revert to the old process.

"In my view the old process was better as most of the judges who were picked by the President were tried and tested," Mrs Mabhiza said.

Justice Mubako said the frequency of tribunals was alarming but there was a need to accept the situation while still trying to keep the institution as sound as possible.