COURT WATCH 10/2020
[15th June 2020]
Separation of the Constitutional Court and the Supreme Court
Reminder: Deadline for Nominations for Five Vacancies for Constitutional Court Judges is 30th June
Until the 22nd May most of the judges of the Supreme Court doubled as judges of the Constitutional Court. The reason for this lies in paragraph 18 of the Sixth Schedule to the Constitution, which states that for the first seven years after the Constitution was published the Constitutional Court was to consist of the Chief Justice, the Deputy Chief Justice and seven judges of the Supreme Court, all of whom had to sit together to hear cases. Any vacancy arising among the seven judges during this period had to be filled from the other judges of the Supreme Court, presumably by the Chief Justice in terms of section 166(2) of the Constitution.
The seven-year period ended on the 22nd May and paragraph 18 of the Sixth Schedule fell away. The Constitutional Court thereupon became an entirely separate court, staffed with its own judges in accordance with section 166 of the Constitution. It also became slightly smaller, with only seven members: the Chief Justice and Deputy Chief Justice and five other judges appointed in accordance with section 180 of the Constitution.
On the 22nd May, and the Chief Justice presided over a ceremony marking what he called “a new era” when:
“the Constitutional Court will operate separately from the Supreme Court with Judges specifically appointed as Constitutional Court Judges dedicated to the development of the country’s constitutional law jurisprudence”.
He said that “due to circumstances beyond the control of the Judicial Service Commission” it was necessary to appoint judges of the Supreme Court to the Constitutional Court in an acting capacity; these appointments would be “only for a very limited period” and substantive appointments would be done in due course in terms of the Constitution.
Although the Chief Justice did not reveal the names of the appointees, the Judicial Service Commission subsequently announced them to be:
- Mr Justice Garwe
- Mrs Justice Makarau
- Mrs Justice Gowora
- Mr Justice Hlatshwayo
- Mr Justice Patel.
How Were These Judges Appointed?
As already indicated, the Chief Justice said the five judges had been appointed in an acting capacity for a very limited period. Section 166(2) of the Constitution states that:
“If the services of an acting judge are required on the Constitutional Court for a limited period, the Chief Justice may appoint a judge or former judge to act as a judge of the Constitutional Court for that period.”
There is no definition of “limited period”, but in the context it seems to mean the period that will elapse until a substantive new judge is appointed or, depending on the circumstances, until the judge whose absence from the court gave rise to a temporary vacancy returns to duty. Either way, the period should not be a long one because:
- It is undesirable for judges to be appointed on a temporary basis to the Constitutional Court: temporary or acting judges may be more likely to give judgments favouring the Government than permanent judges whose tenure is secure.
- The Constitution says in section 324 that constitutional obligations ‒ such as the obligation to appoint permanent judges to the Constitutional Court ‒ must be performed without delay.
Advertising of Vacant Positions on Constitutional Court
The Judicial Service Commission presumably understood that the vacant positions on the Constitutional Court had to be filled quickly, because it published the following advertisement at the beginning of this month.
The advertisement is self-explanatory, but it does not mention one disqualification for appointment to the Constitutional Court: applicants must not be 70 years old or older. That is the age at which all judges must retire in terms of section 186(2) of the Constitution.
Publication of the advertisement shows that the Judicial Service Commission realises that, as the law currently stands, judges have to be appointed to the Constitutional Court through the selection process laid down in section 180 of the Constitution, which involves:
- advertising the vacancies and inviting the President and the public to submit nominations
- interviewing the nominees in public, and
- submitting to the President a list of candidates from whom he will appoint judges to fill the vacancies.
This means that if the five acting judges want to be appointed permanently to the Constitutional Court, they will have to be nominated and undergo public interviews along with any other candidates whose names have been put forward.
The Constitution of Zimbabwe Amendment (No. 2) Bill, which would allow the President to appoint judges without going through the above selection process, is unlikely to become law in the near future – public consultations on the Bill, mandated by section 328(4) of the Constitution, have only just started.
It is regrettable that the Judicial Service Commission did not set the selection process in motion earlier, in time for candidates to have been interviewed and selected before the 22nd May. Perhaps the Commission was hoping that the Constitution would be amended by then, and that the five Supreme Court judges could be appointed permanently to the Constitutional Court without further ado. As it is, we are left with a Constitutional Court in which most of the judges are acting in their posts and so, at least in theory, are vulnerable to pressure from the Executive to give judgments that favour the State.