(Aug. 22, 2017) On July 25, 2017, the 270-member National Assembly, the lower house of Zimbabwe’s bicameral Parliament, passed a bill that among other measures seeks to amend the Constitution to accord the President unfettered power to unilaterally fill the highest judicial positions in the country: those of Chief Justice, Deputy Chief Justice, and Judge President of the High Court. (Amendment Bill Passes – Zanu-PF Flexes Majority Muscle – President Set to Appoint Judges, HERALD (July 26, 2017).) The proposal obtained the support of 182 members, which met the requirement that any constitutional amendment obtain the support of at least a two-thirds majority in both houses of Parliament before it can be sent to the President for signature. (Id.; Constitution of Zimbabwe (2013), § 328(5), World Intellectual Property Organization website.) The bill now heads to the 80-member Senate, where it will need a similar level of support. (Constitution of Zimbabwe, § 328(5).)
The Constitution mandates that the nomination and appointment process of judges be conducted in a public and transparent manner. Under the current system, all judges are appointed by the President from a list of candidates provided by the Judicial Service Commission (JSC). (Id. § 180.) The appointments to be made include, among others, the Chief Justice, who is the “head of the judiciary and … in charge of the Constitutional Court and the Supreme Court,” the Deputy Chief Justice, and the Judge President of the High Court, who is in charge of the High Court. (Id. § 163.) Whenever there is a vacancy, the JSC is constitutionally mandated to do the following in order to fill it:
(a) advertise the position;
(b) invite the President and the public to make nominations;
(c) conduct public interviews of prospective candidates;
(d) prepare a list of three qualified persons as nominees for the office; and
(e) submit the list to the President. (Id. § 180.)
Upon receiving the list, the President “must appoint one of the nominees to the office concerned.” (Id. ) If the President believes that none of the nominees on the list provided is suitable, he must ask the JSC to provide another list of three candidates for his consideration on the basis of which he must make a selection. (Id.)
The organization that plays the primary role in the appointment process under the current system, the JSC, represents diverse interests. Its members include the Chief Justice, who is the chair, the Deputy Chief Justice, the Judge President of the High Court, the Attorney-General, a representative of the Civil Service Commission, three members of the bar, and a representative of the country’s law schools. (Id. § 189.)
If adopted in its current form, the proposed legislation would, among other changes, amend the Constitution to give the President unchecked authority to fill the seats of the three most senior judges in the country. In making the appointments, while the President would be required to consult the JSC, he would not be required to accept any of the body’s recommendations. (Constitution of Zimbabwe Amendment Act (No. 1) Bill, 2017, § 6, Parliament of Zimbabwe website.) Similarly, while the President must inform the Senate if his decision is not consistent with the recommendation of the JSC, the Senate would not have the authority to block or change, or force him to change, his decision. (Id.) The proposed legislation makes it unequivocally clear that the President would enjoy absolute authority, stating:
(1) The Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court and all other judges are appointed by the President in accordance with this section.
(2) The Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court shall be appointed by the President after consultation with the Judicial Service Commission.
(3) If the appointment of a Chief Justice, Deputy Chief Justice or Judge President of the High Court is not consistent with any recommendation made by the Judicial Service Commission in terms of subsection (2), the President shall cause the Senate to be informed as soon as is practicable:
Provided that, for the avoidance of doubt, it is declared that the decision of the President as to such appointment shall be final. (Id.)
The nomination and appointment process to fill all other judicial positions would remain the same. (Id., Memorandum.)