Opinion / Columnist
Judge interviews: Why worthy legal minds will not offer themselves for the bench
03 Jun 2025 at 14:46hrs | Views
LIKE most lawyers who heavily litigate, I followed the recently ended interviews from which it is hoped eight Labour Court judges will be appointed.
As the interviews progressed, I became increasingly concerned that a process which was meant to bring accountability, transparency, independence and some form of democracy to the appointment of judges was turning out as a platform to harangue, humiliate, belittle and embarrass candidates publicly. That this behaviour was not limited to one or two misguided Commissioners, and appeared to be led by the Chairman of the JSC himself, in the person of the Chief Justice alarmed me even more.
Prior to the public interviews, judges would be appointed through identification by the minister responsible for justice through a murky process that no one knew about. There were no calls for expression of interest from those who hankered to be judges; there was no announcement of vacancies for those interested to put forward their names, as far as I am aware, there were no interviews (save perhaps the ministry asking if the person had previous criminal convictions or other previous conduct which would make them unsuitable for the lofty position of judge). Although there was a Judicial Service Commission comprising of ministerial appointees, it is debatable that such Commission held any sway in the appointment process.
The formalisation of the appointment procedures through constitutional provisions and subsidiary legislation was therefore seen as a great leap towards a transparent independent, impartial and all-inclusive appointment process which brought Zimbabwe closer to internationally recognised principles and guidelines on the selection and appointment of judges.
Although there are many aspects of the process that can validly be criticised, such as the secrecy of the scoresheets, the secrecy of the names forwarded to the president from which to pick, those processes do not, at least, result in the deliberate and intentional humiliation of candidates on a public platform.
The public interview process is the culmination of a process that would have started with nominations, followed by background checks and the weeding out of those seen as not meeting the basic criteria, followed by written interviews and I dare say that there must also be some interaction between the JSC and the potential candidates prior to the public interviews. If there are any issues that appear to disqualify candidates, why is it that these are not privately raised with the candidates at such earlier interactions? If a candidate is seen as having a murky private life, why does this have to be aired publicly at the interviews? If one has pending litigation seen as undesirable for a potential judge, why not tell the candidate earlier or disqualify them before the public interviews?
Then there is the special category of candidates who are employed by the JSC as magistrates or administrators within the JSC. I watched with horror as some of those targeted for harassment were harangued in terms that completely violated their personal dignity as human beings. Grown men and women, who are professionals (never mind their questionable judgments in politically motivated cases), were treated worse than school children. What ought to have been dealt with as internal labour/performance issues were thrown at candidates in language, demeanour, and annoyance one does not expect from Commissioners deemed to be independent, impartial, professional, and sensitive to the need to always preserve the personal dignity of every human being.
As a legal practitioner who appears before some of these magistrates, how am I supposed to respect them in court when their own employer has behaved in a manner which suggests they are not worthy of professional respect? And why should litigants who appear before them have any confidence that they will adjudicate fairly when they have been publicly told that they are incompetent? And how do these men and women go back to their families whose excitement that one of them would be interviewed for the prestigious position of judge when such family and friends would have witnessed such crass humiliation?
There is of course also the gross unfairness that this crass humiliation at the hands of their superiors who they cannot robustly respond to, brings into the interviews. The process therefore, becomes wholly one-sided and candidates are not properly heard as and when they proffer explanations.
For those of us who appear regularly at the Magistrates Court, it became quite obvious that the Commissioners are totally ignorant on how some of the courts at Rotten Row function. For instance, the Regional Remand Court No. 14 is probably the busiest court in the entire country. On any given day, that court has to deal with multiple bail applications in serious offences, usually involving more than one person, multiple applications for refusal of remand, multiple challenges on the remand itself and the magistrate is forced to write rulings which will most likely be taken on appeal or review and these must therefore be researched and reasoned. To characterise such a court as just a remand court is a clear mischaracterisation of what goes on in that court.
Then, ofcourse, there are the obviously improper and inappropriate questions that clearly seek to interfere with the little independence that magistrates still have. For an Attorney-General to ask a magistrate why he/she had refused to further remand accused persons is the height of impropriety given the very clear provisions of the constitution which require judicial officers to be independent, impartial, and not subject to control or influence from anyone.
For those of us who appear at the magistrate's courts, it is the structural flaws in the criminal justice delivery chain which allows the arrest of suspects long before proper investigations are done. When it is pointed out at initial remand that there is no reasonable suspicion of the commission of an offence, the very same magistrates are directed to accede to the request for remand and are directed to refuse bail. When investigations are ultimately conducted, the evidence is simply not there, and when the heat is on the remand prosecutor, he/she merely gives a trial date, fully knowing that there is no ready docket and excuses galore are given to the trial court whenever the date of trial comes.
At a personal level, I had an accused given a trial date for July, 2023, and the trial did not commence until September 2024, and at each postponement, the magistrate would record that he would decline any further postponements. The problem is therefore not with the magistrates but with the prosecution authorities who eagerly place suspects on remand, vigorously oppose bail, and thereafter fail to abide by the periods they would have requested at initial remand.
It is highly improper for a JSC member to ask why a magistrate made a certain judicial pronouncement, as that constitutes interference with the independence of the judicial officer. This is apart from the fact that accused persons are all presumed innocent until proven guilty and it is a gross abuse of the criminal justice system to threaten to disqualify magistrates for doing their work. So each time a magistrate is asked to refuse remand, an accused who would have been on remand for an unduly long period of time, instead of considering the merits of the application, the magistrate will be thinking about their prospects of ever becoming a judge if the application is granted. That these inappropriate questions came from Commissioners who are lawyers is most disconcerting.
The Chief Justice, as head of the JSC, has an obligation to ensure that the public interviews are conducted in a manner which respects each candidate's rights, including the right to human dignity, to fair administrative justice and to fair labour rights.
In addition, the Chief Justice owes it to the people of Zimbabwe to conduct an appointment process which will result in the best legal brains being on our superior court benches. As the procedure stands, no self-respecting competent lawyer will want to subject himself/herself to the haranguing that currently passes for judicial interviews.
I implore the legal profession to collectively condemn this charade in the same way that the South Africans did when Julius Malema turned judicial interviews into racist rants that discouraged worthy legal minds from offering themselves for the bench.
Beatrice Mtetwa is a lawyer
As the interviews progressed, I became increasingly concerned that a process which was meant to bring accountability, transparency, independence and some form of democracy to the appointment of judges was turning out as a platform to harangue, humiliate, belittle and embarrass candidates publicly. That this behaviour was not limited to one or two misguided Commissioners, and appeared to be led by the Chairman of the JSC himself, in the person of the Chief Justice alarmed me even more.
Prior to the public interviews, judges would be appointed through identification by the minister responsible for justice through a murky process that no one knew about. There were no calls for expression of interest from those who hankered to be judges; there was no announcement of vacancies for those interested to put forward their names, as far as I am aware, there were no interviews (save perhaps the ministry asking if the person had previous criminal convictions or other previous conduct which would make them unsuitable for the lofty position of judge). Although there was a Judicial Service Commission comprising of ministerial appointees, it is debatable that such Commission held any sway in the appointment process.
The formalisation of the appointment procedures through constitutional provisions and subsidiary legislation was therefore seen as a great leap towards a transparent independent, impartial and all-inclusive appointment process which brought Zimbabwe closer to internationally recognised principles and guidelines on the selection and appointment of judges.
Although there are many aspects of the process that can validly be criticised, such as the secrecy of the scoresheets, the secrecy of the names forwarded to the president from which to pick, those processes do not, at least, result in the deliberate and intentional humiliation of candidates on a public platform.
The public interview process is the culmination of a process that would have started with nominations, followed by background checks and the weeding out of those seen as not meeting the basic criteria, followed by written interviews and I dare say that there must also be some interaction between the JSC and the potential candidates prior to the public interviews. If there are any issues that appear to disqualify candidates, why is it that these are not privately raised with the candidates at such earlier interactions? If a candidate is seen as having a murky private life, why does this have to be aired publicly at the interviews? If one has pending litigation seen as undesirable for a potential judge, why not tell the candidate earlier or disqualify them before the public interviews?
Then there is the special category of candidates who are employed by the JSC as magistrates or administrators within the JSC. I watched with horror as some of those targeted for harassment were harangued in terms that completely violated their personal dignity as human beings. Grown men and women, who are professionals (never mind their questionable judgments in politically motivated cases), were treated worse than school children. What ought to have been dealt with as internal labour/performance issues were thrown at candidates in language, demeanour, and annoyance one does not expect from Commissioners deemed to be independent, impartial, professional, and sensitive to the need to always preserve the personal dignity of every human being.
As a legal practitioner who appears before some of these magistrates, how am I supposed to respect them in court when their own employer has behaved in a manner which suggests they are not worthy of professional respect? And why should litigants who appear before them have any confidence that they will adjudicate fairly when they have been publicly told that they are incompetent? And how do these men and women go back to their families whose excitement that one of them would be interviewed for the prestigious position of judge when such family and friends would have witnessed such crass humiliation?
There is of course also the gross unfairness that this crass humiliation at the hands of their superiors who they cannot robustly respond to, brings into the interviews. The process therefore, becomes wholly one-sided and candidates are not properly heard as and when they proffer explanations.
Then, ofcourse, there are the obviously improper and inappropriate questions that clearly seek to interfere with the little independence that magistrates still have. For an Attorney-General to ask a magistrate why he/she had refused to further remand accused persons is the height of impropriety given the very clear provisions of the constitution which require judicial officers to be independent, impartial, and not subject to control or influence from anyone.
For those of us who appear at the magistrate's courts, it is the structural flaws in the criminal justice delivery chain which allows the arrest of suspects long before proper investigations are done. When it is pointed out at initial remand that there is no reasonable suspicion of the commission of an offence, the very same magistrates are directed to accede to the request for remand and are directed to refuse bail. When investigations are ultimately conducted, the evidence is simply not there, and when the heat is on the remand prosecutor, he/she merely gives a trial date, fully knowing that there is no ready docket and excuses galore are given to the trial court whenever the date of trial comes.
At a personal level, I had an accused given a trial date for July, 2023, and the trial did not commence until September 2024, and at each postponement, the magistrate would record that he would decline any further postponements. The problem is therefore not with the magistrates but with the prosecution authorities who eagerly place suspects on remand, vigorously oppose bail, and thereafter fail to abide by the periods they would have requested at initial remand.
It is highly improper for a JSC member to ask why a magistrate made a certain judicial pronouncement, as that constitutes interference with the independence of the judicial officer. This is apart from the fact that accused persons are all presumed innocent until proven guilty and it is a gross abuse of the criminal justice system to threaten to disqualify magistrates for doing their work. So each time a magistrate is asked to refuse remand, an accused who would have been on remand for an unduly long period of time, instead of considering the merits of the application, the magistrate will be thinking about their prospects of ever becoming a judge if the application is granted. That these inappropriate questions came from Commissioners who are lawyers is most disconcerting.
The Chief Justice, as head of the JSC, has an obligation to ensure that the public interviews are conducted in a manner which respects each candidate's rights, including the right to human dignity, to fair administrative justice and to fair labour rights.
In addition, the Chief Justice owes it to the people of Zimbabwe to conduct an appointment process which will result in the best legal brains being on our superior court benches. As the procedure stands, no self-respecting competent lawyer will want to subject himself/herself to the haranguing that currently passes for judicial interviews.
I implore the legal profession to collectively condemn this charade in the same way that the South Africans did when Julius Malema turned judicial interviews into racist rants that discouraged worthy legal minds from offering themselves for the bench.
Beatrice Mtetwa is a lawyer
Source - Beatrice Mtetwa
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