• NCA draft: No tax, duty or imposition may be imposed except under the authority
of an Act of Parliament.
• Law Society draft: No tax, duty or levy may be imposed except under specific
authority of the constitution or an Act of Parliament.
Must the Executive obey judicial decisions?
• Present Constitution: Yes, though the Constitution does not say so expressly.
Section 31H(2) requires the President to uphold the Constitution and ensure that
all laws are faithfully executed; if he fails to do so the only sanction is
impeachment, a political measure. Section 18(1a) requires all public officers to
uphold the rule of law.
• Kariba draft: Much the same as the present Constitution.
• NCA draft: Yes. All organs of the State will have to ensure the effectiveness of the
courts, and judicial decisions will bind organs of the State.
• Law Society draft: The same as the NCA draft.
Are judges appointed by an independent body?
• Present Constitution: No. The President appoints judges after consultation with
the Judicial Service Commission, which in any event is dominated by his
appointees.
• Kariba draft: The President will appoint the Chief Justice and his or her deputy
after consultation with the Judicial Service Commission, and other judges either
with the approval of the Commission or from a list of names submitted by the
Commission.
Again, the Commission will be dominated by presidential
appointees.
• NCA draft: The Chief Justice and the Judge President will be appointed by the
President from a list of nominees submitted by the Judicial Services Commission;
other judges will be appointed by the President on the recommendation of the
Commission. All these appointments will be subject to approval by the Senate.
The Commission’s membership will be drawn from a variety of sources.
• Law Society draft: Very much the same as the NCA draft. A majority of members
of the Judicial Services Commission will be elected by the legal profession.
Is judicial independence guaranteed?
• Present Constitution: Yes, expressly by section 79B and indirectly by ensuring that
judges can be removed from office only on limited grounds and after a proper
investigation, and by stating that their remuneration cannot be reduced while
they are in office.
• Kariba draft: Very much the same as the present Constitution, though gross
incompetence is an additional ground for removing judges from office.
• NCA draft: Again, much the same as the present Constitution. Gross
incompetence is an additional ground for removing judges, and the procedure for
doing so is not specified.
• Law Society draft: Also much the same as the present Constitution, though again
gross incompetence is an additional ground for removing judges (is some message
being sent to our current judges?). As in the NCA draft, the precise procedure for
removing judges is not specified, though it must be “fair”.
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