Court Watch-03 2016

COURT WATCH 2016

[17th October 2016]

Public Interviews for 8 Vacancies on the High Court Bench:

Monday 24th to Friday 28th October

For five days next week the Judicial Service Commission will interview candidates nominated to fill the eight vacancies on the High Court bench.  The Commission’s earlier call on the public to nominate suitably qualified candidates was covered in Court Watch of 20th June.  These interviews are all open to the public as required by the Constitution [section 180].

·        Dates:  Monday 24th October to Friday 28th October.

·        Venue: Rainbow Towers Hotel, Harare

·        Time:   Proceedings will start at 9.00 am each day.

There are 51 candidates listed for interview.  The Commission plans to interview 11 of them on Monday and 10 on each of the succeeding days.   A list, showing the names of the persons to be interviewed on each day, is attached to this bulletin. 

Every day a timetable of interviews for that day, indicating the individual interview slots, will be posted at the interviews venue.  Further information about the interviews and their timing can be obtained from the Commission at its offices [see below for physical address], telephone Harare 704118 or 706260.   

Gender Balance

Section 184 of the Constitution lays down that appointments to the judiciary “must reflect broadly the diversity and gender composition of Zimbabwe”.  There are 15 women on the list of 51 candidates for 8 vacancies.  The present complement of the High Court bench is 32, of whom 13 are women and 19 men; 2 of those 13 women judges have applied for appointment to the Supreme Court.  Other things being equal, section 184 would suggest that the present appointment exercise must improve on the present gender balance on the High Court bench.

Pre-interview behavioural testing – an innovation

The Commission has, for the first time, invited candidates to undergo a behavioural/aptitude test.  This will be on Friday 21st October and will consist of a three-hour examination to be conducted by a human resources consultancy firm engaged by the Commission.  It will not take place in public and the results will not be disclosed to the public.  The idea is to assist the members of the Commission in their conduct of the interviews and their assessment of the candidates’ aptitudes and fitness for a seat on the High Court bench. 

Members of the Public Are Entitled to Submit Comments on Candidates

The Judicial Service Commission’s Guidelines for the Appointment of Judges [soft copy available via this link to the Veritas website] provide for the list of nominees to be submitted to the Law Society of Zimbabwe and other relevant organisations for comments on the professional conduct of the nominees, and for such comments to be taken into account by the Commission in assessing the nominees [Guidelines, section 10].   

There is also provision for comments on the nominees to be submitted by any member of the public following publication of the list of candidates.  But anonymous comments will not be entertained [Guidelines, section 11].  Persons considering commenting should bear in mind that the Commission will inform a candidate of adverse comments received, and may question the candidate on the comments during the public interview, “with a view to determining whether or not the adverse comments will have a bearing on the nominee’s probity”.  

Deadline for comments:  Comments from members of the public should be submitted in writing to the Judicial Service Commission as soon as possible, to allow the Commission time to inform nominees about adverse comments.  The Commission’s offices are in the Old Supreme Court Building, corner Kwame Nkrumah Ave and Third Street, Harare [next door to the public entrance to Parliament].  Telephone numbers are Harare 704118 and 706260.

Procedure at the Public Interviews

The following points from the Guidelines are noteworthy—

·        Media representatives and members of the public will be entitled to be present to observe the proceedings.

·        The chairperson of the Commission, Chief Justice Chidyausiku, or the Deputy Chief Justice will preside over the proceedings.  

·        All Commission members present will have an opportunity to put questions to interviewees.  

·        Questioning will not necessarily entail uniformity of questions or in interview length, both of which will be in the Commission’s discretion.  Candidates may be asked questions about comments received from the Law Society or members of the public

·        During the interviews, Commission members will score candidates on each of nine qualities: competence, integrity, industry, independence, experience, good judgment including common sense, relevant legal and life experiences; commitment to community and public service, potential for the post applied for. ,

Suggestion: That interviews be televised live   The Guidelines say nothing about televising the interviews, but this would be a desirable development.  It would enhance the transparency of the proceedings and cater for the wider public interest by enabling the whole nation, including citizens based outside Harare, to take an interest in the proceedings.  In South Africa the public interviews of judicial candidates by their Judicial Service Commission are televised live, and this is regarded as promoting citizens’ confidence and pride in their judicial system.

Procedure after the Interviews

The Commission’s deliberations after the interviews will be held in private.  They will take into account performance at the interviews, any comments received from the Law Society, other relevant organisations or the public, the information supplied by nominees in answering the questionnaire and the behavioural test results.  Deliberations on the suitability of nominees will be based on merit.  Deliberations on the final list will take into account the diverse and gender composition of Zimbabwe which the judiciary must reflect.  Having deliberated, the Commission must formally resolve on the list of names to be submitted to the President [Guidelines, section 16; Constitution, section 9(1)(a) on appointments to be primarily on merit, and section 184 on appointments to reflect broadly the diversity and gender composition of Zimbabwe].   The list will then be submitted to the President.  

How many names must be on the list for the President?  

Section 180(2) of the Constitution provides directly only for the situation where there is one appointment to be made, in which case there must be three names on the list.  How this should be adapted to the present facts – eight vacancies and over fifty interview candidates – is not expressly covered.  It is for the Commission to decide on a reasonable, common-sense answer to this question. 

Suggestion: That the list for the President be published

Although the Guidelines do not require it, it is desirable in the interests of transparency that the Commission publish the list of names forwarded to the President.

Appointment by the President

The President must make the necessary appointments from the list, unless he considers that none of the persons on the list are “suitable for appointment”.  If he considers that none are suitable, he must communicate that to the Commission and require it to submit a further list of qualified persons, from which he must then make his appointments.  The appointments must be published in the Government Gazette.  [Constitution, section 180].

Comment:  The President cannot appoint someone whose name has not been submitted by the Commission.  This differs from the position under the former Constitution, under which the President had to consult the JSC before making judicial appointments, but was free, if he wished, to reject its advice and appoint someone it had not recommended.  

 

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