COURT WATCH 2016
[9th November 2016]
12th December Public Interviews for Four Chief Justice Candidates
The Judicial Service Commission [JSC] has announced the four candidates who have emerged from the nomination process. There are four qualified candidates – all senior serving judges. In order of seniority in the judicial hierarchy, the candidates are—
Hon Mr Justice Luke Malaba, Deputy Chief Justice
Hon Mr Justice Paddington Shadreck Garwe, Judge of the Supreme Court
Hon Mrs Justice Rita Tambudzai Makarau, Judge of the Supreme Court
Hon Mr Justice George Mutandwa Chiweshe, Judge-President of the High Court.
The nomination process, in accordance with section 180 of the Constitution, began with the Judicial Service Commission inviting the public and the President to nominate candidates by close of business on Monday 31st October [see Court Watch of 18th October]. The candidates will be interviewed in public on 12th December, and thereafter the JSC will as soon as possible submit a list of three names to the President, from which the President will select and appoint the next Chief Justice – as required by section 180 of the Constitution.
Preparations for Public Interviews of the Candidates: 12th December
The public interviews of the candidates will be on Monday 12th December at the Rainbow Towers Hotel.
JSC staff are now preparing the ground for the holding of the public interviews of the candidates, in accordance with the JSC’s recently published Guidelines on the Appointment of Judges [soft copy available via this link to the Veritas website]. This includes —
- submitting the list of candidates to the Law Society of Zimbabwe and other relevant organisations for comments on the professional conduct of the nominees, to be taken into account by the JSC in assessing the nominees [Guidelines, section 10].
- inviting the candidates to complete a detailed questionnaire providing personal and professional information, including “any existing social, financial, political or other circumstance which may bring the judiciary into disrepute or have implications on the probity of the nominee for the office of Judge” [Guidelines, section 9].
Members of the Public Are Entitled to Submit Comments on Candidates
The Guidelines also provide for written comments on the nominees to be submitted by any member of the public. Members of the public can, therefore, play a part in this stage of the process, by submitting comments to the JSC on any or all of the candidates. But anonymous comments will not be entertained [Guidelines, section 11]. Comments should, therefore, be in writing and identify the person making them.
The JSC will inform each nominee of adverse comments received regarding him or her, and may question nominees on such comments during the public interviews.
Deadline for comments: Although no formal deadline has been set for comments, they should obviously be submitted to the JSC as soon as possible, to allow officials enough time to inform nominees about adverse comments – say, by the last day of November. The JSC 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 or 706260.
Who Will Conduct the Interviews and Decide on the Final List of Three Nominees?
The interviews will be conducted and the list decided by the members of the JSC. On paper the membership of the JSC is thirteen. But there are two long-standing vacancies, and two of the current members – Deputy Chief Justice Malaba and Judge-President Chiweshe – will be ineligible to take part because they are themselves candidates. So the task ahead will fall to the other nine current members, who are: Chief Justice Chidyausiku; Justice Happias Zhou; Chief Magistrate Mishrod Guvamombe; Chairperson of the Civil Service Commission Dr Mariyawanda Nzuwah; Mr Lloyd Mhishi, Mrs Priscilla Madzonga and Mr Josphat Tshuma [legal practitioner members designated by the Law Society]; and Mrs Priscilla Mutembwa [accountant member designated by the Public Accountants and Auditors Board]. The nine of them are more than enough to constitute a quorum capable of valid acts and decisions, because the minimum for a quorum is seven members [Constitution, section 344].
Note: The two JSC vacancies are puzzling, and have existed all along. The missing members [Constitution, section 189(1)] are —
- a professor or senior lecturer of law designated by an association representing the majority of the teachers of law at Zimbabwean universities or, in the absence of such an association, appointed by the President
- a person with at least seven years’ experience in human resources management, appointed by the President.
What is the reason for failing to make the appointments? Although it is a fact that there is no national association of law teachers [why not, you law teachers?], that situation is catered for by the Constitution and clearly does not prevent an appointment of a suitable person by the President. And surely it is possible to find a suitable HR person? These are questions for the Minister of Justice, Legal and Parliamentary Affairs.
What Will Happen After the Interviews?
After the interviews the JSC nine will have to decide on a list of three nominees and submit the list to the President. This will involve eliminating one of the four candidates. The Guidelines are silent on publishing the final list or identifying the eliminated candidate.
The President must then appoint one of these three nominees as Chief Justice, unless he considers that none of the three is suitable for the post. In that highly unlikely event, section 180(3) of the Constitution allows him to require the JSC to submit one further list of three qualified persons.
Brief Biographies of the Candidates
Justice Luke Malaba
LL.B. (Hons) [University of Warwick, UK, 1974]; LL.B. [University of Zimbabwe, 1982]
Registered as a legal practitioner: 14th April 1986
Apart from an initial three years as a prosecutor in Bulawayo [1981-1984], Justice Malaba is a career judicial officer, whose magisterial career started at Masvingo in 1984. He rose steadily through the ranks of the magistracy and attained the rank of regional magistrate in 1990. He was appointed a judge of the High Court in 1994. He was promoted to the Supreme Court in July 2001 and became the country’s first Deputy Chief Justice in July 2008.
Justice Malaba has also held an appointment as a judge of the COMESA Court of Justice.
Justice Paddington Garwe
B.L. 1977, LL.B. 1978 [University of Rhodesia]
Registered as a legal practitioner: 10th May 1979
Like Justice Malaba, he is a career judicial officer. He began as a magisterial assistant in 1978, and worked as a clerk of court and prosecutor before being appointed magistrate in February 1980. He rose rapidly to the level of regional magistrate in 1984 and be came Chief Magistrate in 1989. After serving two years as Chief Magistrate, he became Permanent Secretary for Ministry of Justice, Legal and Parliamentary Affairs in 1991 and it was from that post that he was appointed a High Court judge in October 1993. He became Judge-President of the High Court in 2001 and held that position until appointed to the Supreme Court in 2006.
Aside from his judicial duties Justice Garwe has taken a particular and wide-ranging interest in penal reform, and has been chairperson of the Zimbabwe National Committee on Community Service from 1993 to date and chairperson of the Pre-Trial Diversion Programme for Young Offenders from 2010 to date.
Justice Rita Makarau
B.L. 1982, LL.B. 1983 [University of Zimbabwe]
Registered as a legal practitioner: May 1984
After gaining her legal degrees at the University of Zimbabwe, Justice Makarau started work as a public prosecutor in 1984 but very soon moved into private practice. From 1987-1990 she was legal adviser to the short-lived Parastatals Commission, before returning to private practice. She formed her own law firm in 1994, and remained in private practice until raised to the High Court bench in 2000, which makes her the only one of the four candidates with hands-on experience in private legal practice. She was also a part-time law lecturer at the University of Zimbabwe for five years from 1995. Appointed a High Court judge in 2000, in 2006 she was appointed Judge-President in succession to Justice Garwe, and served in that capacity until her appointment to the Supreme Court in May 2010. Although she remains a Supreme Court judge, her judicial work on that court has been largely on hold following her appointments as Acting Secretary to the Judicial Service Commission in 2010 and chairperson of the Zimbabwe Electoral Commission in March 2013, both of which positions she still holds – but would, of course, have to relinquish if appointed Chief Justice.
She held a non-constituency seat in Parliament from 1995 to 2000, courtesy of appointment by President Mugabe, and was a member of the Parliamentary Legal Committee. She was a member of the Constitutional Commission 1998-2000.
Before becoming a judge, Justice Makarau was active in women’s organisations and charitable causes, She is a member of the Zimbabwe Women Judges Association and of the International Association of Women Judges.
Justice George Chiweshe
B.L. 1985, LL.B. (Hons) 1987 [University of Zimbabwe]
Registered as a legal practitioner: February 1988
Justice Chiweshe is a liberation war veteran whose legal studies at the then University of Rhodesia were interrupted in 1975 by his departure to become a ZANLA combatant, where he achieved the rank of Detachment Political Commissar. He became a prosecutor in 1980 and later completed his legal studies at the University of Zimbabwe. In 1983 he joined the Zimbabwe National Army, where he served in the Directorate of Legal Services, becoming its head and Judge Advocate General in 1996 and attaining the rank of Brigadier-General.
He was appointed to the High Court in 2001. His judicial work was interrupted for several years by his tenure as Chairperson of the Delimitation Commission of 2004 and Chairperson of the Zimbabwe Electoral Commission from 2005 to 2010. In August 2008, together with other retired officers, he was promoted to Major-General by President Mugabe. Shortly after returning to his judicial duties from the Electoral Commission, he became Judge-President of the High Court in May 2010 in succession to Justice Makarau. He has occasionally acted as a judge of the Supreme Court/Constitutional Court.
For Interest – Chief Justices of Zimbabwe to Date
H.N. Macdonald [last Chief Justice of Rhodesia, continued briefly as Chief Justice after Independence before resigning]
J.C.R. Fieldsend [July 1980 to February 1983]
Telford Georges [March 1983 to February 1984]
Enoch Dumbutshena [29 February 1984 to 1990]
A.R. Gubbay [1991 to 2001]
G.G. Chidyausiku [2001 to present, due to retire end of February 2017]
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