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Comment on the Supreme Court decision on judicial appointments

The Supreme Court of Zimbabwe has today made an important ruling allowing the Judicial Services Commission’s appeal against a High Court decision which sought to stop public interviews to fill the position of Chief Justice. This means the public interviews which the Judicial Services Commission (JSC) conducted last December were perfectly legal and by law, President Mugabe must now make a choice from the three candidates submitted by the JSC a following those interviews. Alternatively, if he does not think any of them is suitable, he must go ahead and inform the JSC.

To appreciate the significance of today’s Supreme Court order, it’s important to set out the background:

  • In October last year, pursuant to section 180 of the Constitution of Zimbabwe, the JSC invited members of the public to nominate candidates for the appointment of a new Chief Justice. This was to replace Chief Justice Godfrey Chidyausiku, whose retirement was imminent. The mandatory retirement age for judges is 70 years.

  • Four candidates were nominated and public interviews were scheduled on 12 December 2016. They were Deputy Chief Justice Luke Malaba, Constitutional Court judge, Justice Paddington Garwe, another Constitutional Court judge and Chairperson of the Zimbabwe Election Commission, Justice Rita Makarau, and Judge President of the High Court, Justice George Chiweshe.

  • Five days before the interviews, one Romeo Zibani, a private citizen, made an urgent application to the High Court, challenging the section 180 process and seeking to stop the interviews.

  • The application was heard on 11 December 2016, just a day before the interviews were due to be held. The Ministry of Justice did not oppose the application and undertook to abide by the court order. Tellingly, it also indicated that the government was actually in the process of amending section 180 to change the process of appointing the Chief Justice, which suggested it was in sync with the applicant.

  • Justice Hungwe granted the application, issuing an order to stop the interviews. However, the JSC countered this move by submitting an appeal to the Supreme Court, the effect of which was to suspend Justice Hungwe’s order. This allowed the JSC to proceed with the interviews. It is this appeal that the Supreme Court heard today, the outcome of which was in favour of the JSC.

Effect of the Supreme Court decision

As already pointed out, the significance of the Supreme Court order is that it confirms the legality of the public interviews carried out on 12 December 2016. It confirms that the JSC acted in accordance with the law and was right to pay no regard to Zibani’s efforts to stop the process. It also means President Mugabe must now make a decision on the candidates submitted by the JSC following the interviews. He might, of course, decide that none of the candidates is suitable for appointment, in which case he must inform the JSC, which will be obliged to submit a new set of names after another round of interviews. In a nutshell, the JSC is vindicated and the matter is now in President Mugabe’s hands. If he wants to violate the Constitution, it is up to him as the JSC has done its part.

What about the constitutional amendment?

Meanwhile, after the interviews, the government went ahead with its proposed amendment to section 180 of the Constitution. The object of the amendment is to remove the public nomination and JSC interview process and give the President wide and unchecked powers to appoint the Chief Justice in consultation with the JSC. The President may consult the JSC but he will not be obliged to follow its advice.

Those pushing for the amendment would have preferred to stop the appointment process that is already underway. They wanted to wait for the completion of the constitutional amendment process before appointing the new Chief Justice. This reasoning meant effectively suspending the existing and valid constitutional provisions in favour of a proposed amendment. In the High Court, Justice Hungwe agreed with this flawed reasoning and gave undue weight to the proposed amendment, elevating it to take precedence over a valid constitutional provision. As argued at the time, legally, it was a flawed and unsound judgment – see my analysis of the judgment here:

President Mugabe has no reason to halt a process that the Supreme Court has found to be perfectly valid. In fact, he cannot avoid the process without at the same time contravening a Constitution that he is legally obliged to defend. Section 190(1) of the Constitution imposes a mandatory requirement on the President to “uphold, defend, obey and respect this Constitution as the supreme law of the nation and must ensure that this Constitution and all the other laws are faithfully observed”. When he took his oath as President, he undertook to uphold and defend the Constitution. He must therefore proceed to deal with the nominations submitted to him by the JSC. If he does not thinks any of them is suitable, then he must say so in accordance with section 180. He cannot suspend a valid constitutional provision in favour of a proposed constitutional amendment which is not yet law.

Political gamesmanship

What is clear from this case is that the process of appointing the Chief Justice has been the subject of political gamesmanship within the context of ZANU PF’s succession politics. While Zibani, the litigant who tried to stop the interviews is a private citizen, there is much to suggest that he was not a lone ranger, but that he was, in fact, a proxy of a political faction which is pushing for a particular candidate to take over as Chef Justice. It is hardly a coincidence that Romeo Zibani submitted his application at the same time that the Ministry of Justice was also crafting an amendment to the process of appointing a Chief Justice and that the Ministry had no interest in opposing Zibani’s application. On the contrary, the Ministry of Justice seemed to be quite happy with Zibani’s application, instead of defending the existing provisions of the Constitution, as it is legally obliged to do. It curiously gave precedence to a proposed constitutional amendment, ahead of an existing and valid provision of the Constitution.

Furthermore, one of the candidates, Justice Chiweshe chose to abscond from the interview process, while the other three duly complied. Justice Chiweshe gave no reasons for absenting himself from the process. The Supreme Court has now shown that he disqualified himself from a perfectly legal process.

There was further gamesmanship at the Supreme Court hearing, where Zibani’s lawyers deliberately failed to file heads of argument. It is an elementary rule of the court that a litigant must submit heads of arguments. In lay terms, heads of arguments constitute a summary of the main arguments that a party will make at the hearing. They allow judges and counter-parties to get a preview of the main arguments before the actual hearing. However, Zibani and his lawyers did not submit these heads. Their argument, apparently, was that the appeal had been improperly set down ahead of other matters. They forgot that they had submitted their High Court application on an urgent basis. If the application was urgent, why shouldn’t the appeal be treated as urgent too?

Instead, when they appeared at the Supreme Court, they sought to have the matter postponed, exposing the move as a no more than a delaying tactic. The object seems to have been to delay the matter as long as possible until the constitutional amendment, which is not yet before Parliament, is done. However, the Supreme Court made these machinations redundant by dismissing the application for a postponement and ruling in favour of the appeal. The ball is now firmly in President Mugabe’s court. It is up to him to uphold the Constitution by proceeding with the current process or to defy the Constitution by waiting for the amendment.

Recusal of judges

There is another matter which I must deal with before I conclude this note. It is about the mass recusal of judges which meant the Supreme Court almost failed to meet the minimum quorum requirement. A Supreme Court hearing requires a minimum of 3 judges. Prior to the hearing, a number of Supreme Court judges recused themselves. It is understandable in the case of Chidyausiku, Malaba, and Garwe, all of whom were involved in the interviews. For most of the other judges, their recusal raises a number of questions as to what might have motivated their decisions.

Judicial recusals happen where a judge might have an interest in a matter. It might be that one of the parties is known to a judge or the judge has a financial interest in a matter and these circumstances might result in bias. There are good public policy reasons justifying the doctrine of judicial recusal. It has been said “Courts, like Caesar’s wife, must not only be virtuous but above suspicion” (U’ren v Bagley, 118 Or. 77 (Or. 1926). In lay terms, judges must not sit in a case in which they might have apparent bias. The established test of apparent bias is that a judge must recuse himself “if a fair-minded and informed observer, having considered all the facts, would conclude that there was a real possibility that the judge was biased” (Porter v Magill [2002] 2 AC 357).

However, judicial recusal is not to be taken lightly. Even where a party applies for recusal, it does not mean a judge must automatically remove himself from the case. Indeed, in the High Court, the JSC asked for Justice Hungwe’s recusal but he rejected the application. But if Justice Hungwe saw no reason to recuse himself from the case, why exactly did so many Supreme Court judges decide to recuse themselves from this case? It can’t simply be because the matter involved some of their colleagues. Judges decide cases involving their judicial colleagues all the time. During the land takeovers, judges routinely decided cases where the legality of fellow judges’ land occupations was challenged. Justice Elizabeth Gwaunza presided over Justice Paddington Garwe’s defamation case against The Zimbabwe Independent newspaper. Justice David Mangota’s divorce is being handled by a fellow judge. There are more similar cases where fellow judges are required to deal with issues involving fellow judges. That a matter involves judicial colleagues is not a good enough reason for recusal.

It is therefore curious that so many judges recused themselves to the point that the recently retired Justice Vernanda Ziyambi had to be recalled to the bench to make up the quorum. The lack of a quorum would have frustrated the appeal and therefore delayed it. One must hope that judges did not take the easy but cowardly route of avoiding a difficult case or worse, that there was no undue influence or pressure on judges leading to mass recusals. They deprived themselves of an opportunity to write solid judgments in a matter of great legal significance in which the integrity of the Constitution was at stake. For future students of law, the question as to which takes precedence between an existing constitutional provision and a proposed constitutional amendment is settled in favour of the former. One might say the answer was always never in doubt, but Justice Hungwe’s judgment last December had brewed a great deal of unnecessary confusion. Now the Supreme Court has confirmed an elementary principle of law.

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