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An opinion on recent judicial appointments in Zimbabwe
Alex T. Magaisa
May 27, 2010

1. An issue has arisen over the recent appointment of judges to the High Court of Zimbabwe by President Mugabe. The MDC has accused its partner in the coalition government (ZANU PF) of breaching the Global Political Agreement (GPA) by making the judicial appointments without consulting its principal, Prime Minister Morgan Tsvangirai.

2. On the face of it, this seems to be yet another incident of flagrant disregard for its partners by the former ruling party, ZANU PF. On closer inspection of the Constitution and the GPA, the worst that has happened is inconsistency with the spirit of that agreement.

3. However, what this episode demonstrates are the weaknesses of the GPA in that it fails to specifically and unambiguously make provision for such an important arm of the state as the judiciary. It exposes the fact that the negotiators and drafters of the GPA were concerned mainly with political office and therefore, concentrated on those arms of the state that directly affected their immediate interest, i.e. the Executive and Parliament. The judiciary seems to have been forgotten, at great cost as recent events have demonstrated.

4. The provision in the GPA that is being relied upon to challenge the unilateral judicial appointments is Article 20.1.3 (p) which states as follows:

"[the President] . . . in consultation with the Prime Minister, makes key appointments the President is required to make under and in terms of the Constitution or any Act of Parliament".

4.1 Clearly, this provision requires that 'key appointments- be made following the President-s consultation with Prime Minister. Nevertheless, to decide whether President Mugabe breached this rule by making unilateral judicial appointments, it is necessary to determine whether judicial appointments constitute 'key appointments-. That is because if they are not, then the President is under no obligation to comply with this provision of the GPA requiring consultation and agreement with the other principals. It might seem obvious to think that judicial office is a 'key appointment- but, in fact, it-s not that simple. When you are dealing with an elusive partner, you cannot rely on the 'spirit- of the agreement alone - you have to make sure that the wording is clear and watertight. It is on this point that the GPA is weak because it does not have clear provision for judicial appointments.

4.2 Now, determining whether judicial office is classified as a 'key appointment- is a matter of definition and interpretation. Unfortunately, the term 'key appointment- is not specifically defined in the GPA. The only guide is that they are 'key appointments- that the Present is required to make under 'the Constitution or an Act of Parliament-. That was error number one, failure to observe a cardinal rule of drafting which requires definition of key terms. Every law or agreement normally contains a definition provision as an aid to the interpretation of the substantive provisions.

4.2.1 Given the potential battle over top government appointments under the GPA, which was clearly foreseeable, negotiators and drafters should have known that it was necessary to define this term more specifically. If 'judicial office- was captured within that definition the present problem would be easy to resolve.

4.2.2 The fact however, is that the President is required to make many appointments under the Constitution and the hundreds of laws on the books of Parliament, there is no objective criterion to give guidance on what constitutes 'key appointments- thereby creating a recipe for controversy, as is now the case. It would have been better if the provision simply required consultation and agreement between the President and Prime Minister on all constitutional appointments.

4.3 There is further and fundamental ground which makes it problematic to include 'judicial office- within the general terms as advocated. The GPA itself contains various positions whose appointment requires the President to consult with the Prime Minister and not a single one makes reference to the judiciary. For example, there is Article 20.1.7 which is entitled, "Senior Government Appointments". It states as follows:

"The Parties agree that with respect to occupants of senior Government positions, such as Permanent Secretaries and Ambassadors, the leadership in Government, comprising the President, the Vice-Presidents, the Prime Minister and Deputy Prime Ministers, will consult and agree on such prior to their appointment".

4.3.1 Plainly, this provision makes specific reference to 'senior government positions- that are presumably considered key to warrant their own provision. (If that is the reasoning, why not a specific one for judges, too?) It requires that appointments to senior government positions, such permanent secretaries and ambassadors, be made following consultation and agreement between the government leadership who include the President and the Prime Minister. If judicial office constituted 'senior government positions- or was considered key it is reasonable to expect it to have been stated specifically in these provisions.

5. It could be argued however that even though there is no specific provision for judicial appointments, the language used in this provision does not restrict the scope of the meaning of a 'senior Government position-. It reads: "senior Government positions, such as Permanent Secretaries and Ambassadors" .

5.1 This indicates that 'senior Government positions- include positions such as permanent secretaries and ambassadors but is not limited to those positions. The use of 'such as- suggests that the positions mentioned are merely examples and the list in not exhaustive. This might lend some support to the view that even though not included as one of the examples, judges also occupy 'senior Government positions-. Or still it could be argued that judges constitute 'key appointments- under Article 20.1.3(p) of the GPA.

5.2 Persuasive as this view might seem, to my mind this is stretching the definition too wide and is legally risky as far as the stature and independence of judicial office is concerned. Judges are not like normal civil servants. Judges are not like permanent secretaries and ambassadors and to place them in that class (as part of the above argument suggests) compromises their status. The judiciary is one of the three separate arms of the state; the others are the Executive and Parliament. The key distinguishing factor about the judiciary is the paramount importance of its independence. Their position is a special one, which is why the Constitution makes specific provision for their appointment, independence, remuneration and removal.

5.2.1 To my mind, to classify them as 'senior Government positions- in the same category as Permanent Secretaries and Ambassadors, who serve the Executive arm of government and are subject to the direction and control of their principals or merely as 'key appointments- would be to unwisely relegate judicial office which is specially provided for in the Constitution. That is why, whereas Permanent Secretaries and Ambassadors essentially fall within the jurisdiction of the Public Service Commission, a specific Commission is responsible for judicial office, namely the Judicial Service Commission.

5.3 Yet still the scope of what constitutes 'key appointments- (Art. 20.1.3(p)) or 'senior Government position- (Art. 20.1.7) cannot have been intended to be unlimited. Rules need to specific if they are to serve their purpose otherwise they create room for unnecessary controversy. Given the importance of judicial office in any democracy, it seems to me reasonable to expect such positions to have been mentioned specifically Article 20 and not to have to deduce them from general provisions such as 'key appointments- or 'senior Government positions-. To include judges by implication, probably makes political sense in the interests of upholding the spirit of the GPA but that would be stretching it too far.

5.4 The fact is that given the critical importance of the judiciary as a separate arm of the state the issue of judicial appointments should have been dealt with specifically, removing any vagueness or ambiguity that presently exists.

6. What therefore, is the legal position in respect of judicial appointments?

6.1 Article 1 of the GPA states as follows:

"For the avoidance of doubt, the following provisions of the Interparty Political Agreement, being Article XX thereof, shall, during the subsistence of the Interparty Political Agreement, prevail notwithstanding anything to the contrary in this Constitution . . . "

6.1.1 The implication of this is that if Article 20 made provision for the appointment of judges, it would apply instead of the provisions currently in the main body of the Constitution. In other words, the provisions of Article 20 of the GPA substitute the existing constitutional provisions where there is a clash.

6.1.2 I have already argued that I do not believe Article 20 makes provision for judicial appointments and also why stretching the definition to meet political expediency would be unwise given the negative implications of doing so on judicial office. The net result is that not having been specifically provided for under the GPA (unwisely and short-sightedly, it has to be said) judicial appointments are still governed by the old provisions of the Constitution. Section 84 of the Constitution is the relevant provision and it says in the key part:

"[Judges] shall be appointed by the President after consultation with the Judicial Service Commission".

6.1.3 The next provision is very clear on what happens if the President-s choice is consistent with the recommendation of the Judicial Service Commission - he must notify parliament. Even though this may be of no consequence as he is merely required to inform parliament but still go ahead with the appointment at least the constitution lays down a procedure that is clear. There is no such provision under either Article 20.1.3 (p) or Article 20.1.7. We are not told what should happen should the President-s choice be different from that of the Prime Minister. Consequently, the President may as well consult but what the Prime Minister thinks would be of no consequence.

6.1.4 It is not necessary for the purposes of this article to go into the finer details about the appointment process under Section 84 of the Constitution. It suffices to say that the critical question is whether President Mugabe followed the laid down procedure of consulting with the Judicial Service Commission. There is no provision under this clause for consultation with the other principals under the GPA. That this should have been provided for specifically in the GPA is undoubtedly important and that it was not is a demonstration of a grave oversight.

6.1.5 This does not mean that what President Mugabe did was political correct or wise. In the spirit of inclusivity, he ought perhaps to have had a word with his partners in government, given the nature of the coalition and sensitivities surrounding its stability. Legally, however there seems to be thin ground to challenge the appointments unless the President did not consult the Judicial Service Commission.

6.1.6 More importantly, it means that the negotiators and drafters erred by failing to deal more specifically with the critical issue of the third and crucial arm of the state: the judiciary. That perhaps is the problem when politicians eyeing political office are given responsibility over these issues. They focus more on the positions that directly affect them, appertaining to the Executive and Parliament. It is also why people should worry that the current constitution-making process is essentially in the hands of politicians battling for political power.

Alex T. Magaisa is based at the Kent Law School and can be emailed at a.t.magaisa@kent.ac.uk or wamagaisa@yahoo.co.uk

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