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.
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