If the new constitution is to form the basis of a truly democratic society in Zimbabwe, it must seek to strengthen the independence, effectiveness and integrity of the judiciary. It can do this in the following ways: 1. by ensuring that members of the judiciary are selected through an impartial appointment process; 2. by ensuring that, so far as possible, suitably qualified and non politically partisan people are appointed to the judiciary; 3. by giving members of the judiciary security of tenure to protect them from undue influence exerted by the Executive and the Legislature; 4. by providing suitable mechanisms to ensure that members of the judiciary carry out their work efficiently; 5. by ensuring that members of the judiciary observe high standards of ethical conduct. Selection of the Judiciary Current system in Zimbabwe Under the present Constitution, the Chief Justice and the other judges of the Supreme Court and High Court are appointed by the President after consultation with the Judicial Service Commission (JSC). If the appointment of any of these judges is not consistent with a recommendation made by the JSC, the President must inform the Senate of that fact, but there is nothing the Senate can actually do, even if it does not agree with the President. This means, in effect, that the President can appoint whoever he likes, even if the JSC has recommended otherwise. Judicial officers who preside over the specialised courts mentioned above (the Administrative Court, the Labour Court, etc.) are appointed by the President after consultation with the JSC, though there is no provision for the President to inform the Senate if he goes against a recommendation made by the JSC. Magistrates are appointed directly by the JSC. The JSC consists of the Chief Justice or his or her deputy, the chairperson of the Public Service Commission, the Attorney-General and between two and three other members appointed by the President. No member of the JSC, therefore, is independent of the direct or indirect influence of the executive (but, as indicated above, even if the JSC was genuinely independent it would not matter anyway). Not surprisingly, there have been repeated allegations that judicial appointments and promotions have been politically motivated. How can the new constitution improve the selection process? Internationally, there are two main ways of selecting members of the judiciary: election and appointment. System 1: Electing members of the judiciary If the principle to be observed in a democracy is that all legal and political authority derives from the people, then logically the people should elect, not only members of the Executive and the Legislature, but members of the judiciary as well. Most countries do not have judicial elections, however, prominent exceptions being the some States of the United States, Japan and Switzerland. Advantages of judicial elections: • Legitimacy: The election of judges gives them sufficient legitimacy to be co-equal with the other branches of government. 57

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