44 | Zimbabwe Rule of Law Journal
courts.35 Financially, a restricted budget, for example, can create inefficiency and affect independence
and this will eventually lead to the manipulation of the judiciary by the executive.36
However, it has been stated that there is an exception to the rule of judicial independence which exists
for purposes of facilitating the achievement of the mandate of the judiciary.37 The exception is the
requirement that the state should take measures to protect the judiciary and, in fact, the executive
is legally obliged to protect the judiciary.38 John Ferejohn candidly stated that, even if judges enjoy
some insulation from political intrusions, the Constitution ensures that the institutions within which
they work, i.e. the courts, remain remarkably dependent on executive power-wielding officials.39 This
is because the courts rely on parliament and government for implementation of judicial decisions,
allocation of funds and passage of laws. This portrays a necessary linkage between the judiciary
and the executive. If the limits and scope of this necessary linkage is not properly established, the
legislature, for instance, can interfere with judicial independence by passing legislation to limit the
jurisdiction of the courts if they feel threatened.40
2.2 Analysis of the legal functions of JSC in promoting judicial independence
As observed above, the concept of judicial independence has significant meaning and relevance for
promoting the rule of law and constitutionalism in Zimbabwe. For a start, the JSC itself is at the centre
of promoting judicial independence as stated in s 190 (2) which states that the JSC must promote
and facilitate the independence, accountability, and the effective and efficient administration of the
judiciary. Such a mandate supposes that the JSC should promote the practical application of s 164(1)
35
See generally M. Diibotelo (Chief Justice of Botswana) (August 2015) “Importance of Appointment Procedures in ensuring
judicial Accountability and Independence of the Bench” paper presented during The Southern Africa Chief Justices Forum
Annual General Meeting and Conference held at Victoria Falls from 27 – 30 August 2015
36
See generally O.C Ruppel op cit note 28 at 224
37
Op cit note 28 at 219
38
Op cit note 28 at 219
39
J. Ferejohn op cit note 27 at 6
40
In Zimbabwe during the height of the land invasions and land reform programme, government passed Constitutional
Amendment No. 17, through insertion of Section 16B in the old Constitution, now Section 72 (3)(b) in the new Constitution
which ousted the jurisdiction of the courts after a string of Supreme Court decisions based on discrimination, inequality. See
generally, Commercial Farmers Union v Minister of Lands and Others 2000 (2) ZRL 469 (S)
Select target paragraph3
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