COURT WATCH 2015
[26th September 2015]
On 16th September, in a ceremony at the Constitutional Court attended by invited guests, nine new judges were sworn in by Chief Justice Chidyausiku – three judges of the Supreme Court and three of the High Court.
Under section 185 of the Constitution only the Chief Justice and the Deputy Chief Justice must be sworn in by the President. Other judges must take the judicial oath before the Chief Justice or the next most senior judge available. Under the former constitution all judges were sworn in by the President, and swearing-in ceremonies traditionally took place at State House in the presence of invited guests. Last week’s ceremony was attended by invited guests, including other judges, Judicial Service Commission members and officials, representatives of the Ministry of Justice, Legal and Parliamentary Affairs and the legal profession and family members of the new judges.
The Three New Supreme Court Judges
The three new Supreme Court judges were all senior High Court judges before their elevation to the Supreme Court. They are:
- Justice Susan Mavangira [an Acting Supreme Court judge at the time of this appointment]
- Justice Chinembiri Bhunu
- Justice Tendai Uchena.
The judges were appointed by the President from a list of nine qualified candidates submitted by the Judicial Service Commission following the Commission’s public interviews of candidates in July 2014 [in compliance with the procedure for appointment of judges laid down by section 180 of the Constitution].
There are now thirteen Supreme Court judges in all. Of the thirteen, Justice Makarau remains on secondment to the Judicial Service Commission as its Executive Secretary.
Gender balance The Supreme Court now has six women judges, and seven men.
Effect on the Composition of the Constitutional Court Bench
The Constitutional Court is not yet truly a separate court with its own judges. That ideal state of affairs – the one envisaged by section 166 of the Constitution – is delayed until 22nd May 2020 as laid down by the transitional provisions in the Sixth Schedule to the Constitution – 22nd May 2020 being the seventh anniversary of the publication date of the Constitution in May 2013.
Until that date, under the transitional provisions:
- the Constitutional Court consists of the Chief Justice, the Deputy Chief Justice and seven other judges of the Supreme Court, who must sit together as a bench to hear any constitutional case [Constitution, Sixth Schedule, paragraph 18(2)]
- vacancies on the Constitutional Court must be filled by another judge, or an additional or acting judge, of the Supreme Court. [paragraph 18(3)].
Up to now, the Supreme Court has had only ten substantive judges. One of the ten, Justice Makarau, has been and still is on secondment to the Judicial Service Commission as its Executive Secretary, and therefore not available for court duties. The Constitutional Court has, therefore, consisted of the Chief Justice, Deputy Chief Justice and the seven active Supreme Court judges. No vacancies have arisen because there have been no deaths, retirements or resignations. Temporary individual absences on leave or other official duties have been filled by calling on acting Supreme Court judges.
The presence of three additional judges on the Supreme Court will not change the composition of the Constitutional Court just described. The new judges are not automatically substantive judges of the Constitutional Court. But it means that in practice the Chief Justice will no longer have to rely on acting Supreme Court judges to stand in for Constitutional Court judges away sick or on leave or on other duties.
Procedure for Filling Vacancies in the Constitutional Court
What procedure must be followed for filling a vacancy on the Constitutional Court brought about by death, retirement or resignation of one of its existing judges? Paragraph 18(3) specifies that the replacement must be a judge or an additional or acting judge of the Supreme Court – not how the replacement is selected and appointed. Section 180 of the Constitution lays down the procedure for the appointment of all judges – i.e. a call for candidates, public interviews by the Judicial Service Commission and eventual appointment by the President from a list of qualified candidates sent to him by the Commission. This means that the none of the new Supreme Court Judges are automatically judges of the Constitutional Court.
New High Court Judges
In alphabetical order the six new High Court judges – three women, and three men – are:
Justice Jester Helena Charewa
Justice Tawanda Chitapi
Justice Davison Moses Foroma
Justice Nyaradzo Priscilla Munangati-Manongwa
Justice Edith Kuda Mushore
Justice Clement Phiri.
The six appointments were made by the President from a list of qualified candidates submitted by the Judicial Service Commission in compliance with section 180 of the Constitution. Public interviews of candidates for appointment were held in April and August last year.
About the new judges Justice Charewa comes to the High Court bench from the Zimbabwe Human Rights Commission, where she has been Executive Secretary since June 2014. Before that she was Deputy Registrar of the African Court on Human and Peoples’ Rights in Arusha, Tanzania.
The other judges are senior legal practitioners with experience in private legal practice, either in law firms [Justices Chitapi, Foroma and Munangati-Manongwa] or as advocates [Justices Mushore and Phiri].
Justice Foroma, a Muslim, did not take the judicial oath on the Bible, but in accordance with Muslim practice on the Koran. [Note: Section 60 of the Constitution states that no-one may be compelled to take an oath in a manner contrary to their religion or belief.]
Gender balance Taking into account the recent sad death of Justice Andrew Mutema and last week’s move of three judges to the Supreme Court, the six new appointments bring the total number of High Court judges to 32. 13 are women, 19 are men.
New Senior Judge in Bulawayo
Justice Francis Bere has been transferred from Harare to Bulawayo to replace the late Justice Mutema as senior judge in charge of the High Court in Bulawayo.
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