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The Judiciary Part I - Constitution Watch Content Series
November 02, 2011
Judiciary Part I
is one of the three main branches of government, the other two being
the Legislature (i.e. Parliament) and the Executive (the President,
Ministers, the Public Service, the Police and Defence Forces). The
judiciary consists of all judicial officers, namely, the people
such as judges and magistrates who decide civil and criminal cases
the main courts are the Supreme Court and the High Court, which
are presided over by judges, and magistrates courts which, as their
name suggests, are presided over by magistrates. There are also
local courts which administer customary law; these comprise primary
courts (i.e. headmen’s courts) and community courts (i.e.
chiefs’ courts). In addition there are other specialised courts
such as the Administrative Court, which deals with applications
and appeals under various Acts of Parliament,
and the Labour Court which deals with labour matters. These courts
are presided over by their own judicial officers, i.e. by people
who are appointed to preside over the courts on a full-time basis.
In addition there are other specialised courts such as the Fiscal
Appeal Court, the Special Court for Income Tax Appeals, presided
over by judges, and the Maintenance Court, presided over by magistrates.
of the judiciary, other than chiefs and headmen, are under the administrative
control of the Judicial Service Commission, which is chaired by
the Chief Justice.
of the Judiciary
judiciary is essential if the rule of law is to prevail. The concept
of the rule of law was dealt with in an earlier Constitution Watch,
but briefly it exists where:
- no one can
be punished unless a court has declared that he or she has been
guilty of a breach of the law;
is equally subject to the law, and no-one is above the law; and
- the courts
and the law-enforcement agencies enforce and apply the law impartially.
these conditions are to exist there must be an effective and independent
The rule of
law is not the same as democracy, because it is theoretically possible
for the rule of law to be respected even by an undemocratic government,
but it is hard to envisage a truly democratic society in which there
is no rule of law. So, because an effective and independent court
system is essential for the rule of law, and because respect for
the rule of law is an important element of a democratic State, one
can say that a functional and independent court system is vital
for a truly democratic State to exist.
importance, the judiciary is the weakest arm of government. It depends
on the other branches to be able to function at all. Court officials
are paid out of funds allocated by the Executive and Parliament;
in criminal cases, the co-operation of the police is vital; and
the enforcement of court decisions, both civil and criminal, depends
on people who are employed by the Executive. If the Executive chooses
to disregard a court decision – as has happened frequently
in this country – there is little the courts can do about
it, other than protest.
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
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
of the Judiciary
system in Zimbabwe
84 of 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. The
Constitution does not say what the Senate is expected to do in such
a situation, so presumably there is nothing it actually can 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.
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 (section 92 of the Constitution), 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 (section 7 of the Magistrates Court
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 (section 90 of
the Constitution). 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
How can the
new constitution improve the selection process?
there are two main ways of selecting members of the judiciary: election
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.
disadvantages of judicial elections are the following:
The election of judges gives them sufficient legitimacy to be
co-equal with the other branches of government.
Elections make judicial officers more democratically accountable.
Elected judges are likely to be more in tune with public opinion.
Judicial elections are more competitive, open and fair than most
- Lack of
professionalism: Ordinary voters do not have enough information
to pick the best judges. They may not appreciate the professional
qualities required for a judge, and judicial candidates cannot
voice their opinions like candidates for political office (it
would be improper for a candidate judge to pander to the electorate’s
baser instincts by promising to hang all murderers and rapists,
or to penalise the rich).
influence: Elected judges will be tempted to give judgments that
will ensure their re-election; this is the obverse side of accountability.
and bias: Although the election of judges does not inherently
require political partisanship, there is a danger that elected
judges become too closely aligned to political parties or individuals
who contributed to their election campaigns.
The fact that
few countries have chosen to have a system of elected judges is
most telling. If electing judges was a self-evidently superior system,
one would expect it to be in much greater use, but very few countries
have such a system. Judges and magistrates are usually appointed,
subject to safeguards to ensure their independence, by the Executive
or the Legislative branch, or by both branches.
2: Appointing members of the judiciary
If judges and
magistrates are to be appointed, the questions arise: who should
appoint them? What procedures should be followed?
appointment of judges is, at least formally, made by the head of
State. In the case of magistrates and other junior judicial officers
the appointment may be made by other authorities. In Zimbabwe before
June last year, magistrates were appointed by the Public Service
Commission because they were part of the Public Service; now they
are appointed by the JSC.
no reason to change this position: under the new constitution senior
judicial officers should continue to be formally appointed by the
head of State, while junior officers should be appointed by the
JSC or whatever other body is created to oversee the judiciary.
What needs to be changed is the pre-appointment procedures for selecting
appointees (see above) and procedures for appointment.
or no formal process
In Canada and
Australia, judges are appointed by the head of State (the Governor-General)
acting on the advice of the Cabinet which is conveyed to him or
her through the Prime Minister. In Canada an advisory committee
is formed whenever a vacancy occurs on the Supreme Court bench,
and this allows for greater consultation though it does not fundamentally
alter the largely informal process.
In India judges
of the Supreme Court are appointed by the President in consultation
with the Supreme Court, and appointments are generally made on the
basis of seniority and not political preference. Judges of state
High Courts are appointed by the President in consultation with
the Chief Justice of India and the governor of the state concerned.
While in these
countries the Executive theoretically has a great deal of freedom
in choosing judges for the highest court, it needs to be remembered
that they are all strong democracies with a vigorous free press.
Consequently, politicians must act with caution.
In the United
States, Supreme Court justices, and judges of Federal appeal courts
and district courts, are nominated by the President and confirmed
by the United States Senate. The Senate Judiciary Committee typically
conducts confirmation hearings for each nominee. The system is open
to criticism: the hearing process, for one thing, is said to be
intrusive and time-consuming; Senators try to get candidates to
commit themselves to a particular line on contentious issues; and
nominations are very much affected by the President’s own
In the United
Kingdom a Judicial Appointments Commission is responsible for selecting
judges in England and Wales. It is a independent statutory body
made up of 15 members of whom nine are drawn from the judiciary
and the legal profession and six are lay-people. The Commission
interviews applicants and selects them on merit measured by five
core qualities: intellectual capacity, personal qualities (integrity,
independence, judgement, decisiveness, objectivity, ability, willingness
to learn), ability to understand and deal fairly, authority and
communication skills, and efficiency. Successful candidates are
formally appointed by the Lord Chancellor (not the head of State).
In South Africa
judges of the Constitutional Court are appointed by the President
after consultation with the JSC and the leaders of parties represented
in the National Assembly (the President is free to disregard their
opinion). The candidates for appointment are chosen from lists prepared
by the JSC after public interviews. The President appoints judges
of the Supreme Court of Appeal and the various High Courts on the
advice of the JSC (he must follow the advice) and he appoints the
Chief Justice, the President and Deputy President of the Supreme
Court of Appeal after consultation with the JSC (but can disregard
The South African
JSC is a large body comprising judges, members of the legal profession,
the Cabinet and members of both Houses of Parliament; when it considers
appointments to a provincial High Court, it includes the premier
of the province concerned and the judge heading that High Court.
Hence the legal profession, the public and politicians all have
a say in the appointment of judges.
To be continued
in Part II
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