COURT WATCH 9/2020
[5th June 2020]
Five Vacancies on Constitutional Court:
JSC Invites Public to Nominate Candidates to Fill Them
Five vacancies have existed on the Constitutional Court since 22nd May.
The vacancies have arisen, not because judges have died, retired or been removed from office, but by operation of law – the expiry of the temporary transitional constitutional provisions under which Supreme Court judges also served as Constitutional Court judges for the first seven years of the court's existence [Constitution, Sixth Schedule, paragraph 18(2)]. Friday 22nd May was the seventh anniversary of the day on which the court was established by the present Constitution.
Now, and since 22nd May, according to section 166 of the Constitution, the court must consist of the Chief Justice and the Deputy Chief Justice as ex officio judges, plus "five other judges of the Constitutional Court", i.e. persons appointed to the court by the President in accordance with the lengthy procedure laid down in section 180 of the Constitution.
22nd May dawned without substantive appointments having been made to fill the vacancies in terms of that section. With only the two ex officio judges – the Chief Justice and the Deputy Chief Justice it would have been impossible to comply with the Constitution's requirements for either a three- or seven-judge court to hear cases [section 166(3)]. The Chief Justice accordingly appointed five acting judges in terms of section 166(2) of the Constitution. This provision permits him to appoint a judge or former as an acting judge of the Constitutional Court "for a limited period" if the need arises. These acting appointments enabled the court to function pending the making of substantive appointments.
This unusual situation will be covered in more detail in a separate bulletin. For present purposes it is sufficient to say that it needs to be regularised as a matter of urgency by making substantive appointments in terms of section 180 of the Constitution.
Judicial Service Commission Invites Nominations from the Public: Deadline for Submission is 30th June
The Judicial Service Commission [JSC] has this week taken the first step required by section 180 of the Constitution ["section 180" hereafter] for filling the five vacancies. It has published a Positions Advertisement [link] advertising the vacancies and inviting members of the public to submit nominations of suitably qualified individuals to the JSC, either directly or through provincial magistrates listed in the advertisement. The advertisement sets out the qualifications for appointment [see below] and the procedure for submitting nominations by the fixed deadline, which is close of business on Tuesday 30th June. Note that the official nomination form [link] must be used and the instructions on the form observed. The nominee's CV and acceptance of the nomination are required.
Qualifications Required for Appointment to Constitutional Court
Sound knowledge of constitutional law
The special qualification required of candidates for the Constitutional Court is "a sound knowledge of constitutional law" [Constitution, section 177]. In his address at the ceremony on 22nd May to mark the significance of the new era for the court, the Chief Justice stressed the importance of this::
"The critical criterion for appointment is a sound appreciation and knowledge of constitutional law. The focus on experience and constitutional knowledge highlights the integral part that the Constitutional Court must play in any constitutional democracy."
A candidate must also be a Zimbabwe citizen at least forty years old, have served as a judge, or have been qualified to practise as a legal practitioner for twelve years, and – as with all judicial appointments – be a fit and proper person to hold office as a judge .
Not Essential for Constitutional Court Judge to Have Had Previous Judicial Experience
Zimbabweans have become accustomed to Supreme Court judges being appointed exclusively from serving High Court judges. And, as explained above, the Supreme Court has been the source of all judges serving as judges of the Constitutional Court since 2013.
Does this mean, however, that all five appointees to fill the present vacancies on the Constitutional Court should have had previous judicial experience in the Supreme Court or, for that matter, the High Court? Section 177 of the Constitution, listing the qualifications for judges of the Constitutional Court certainly does not require it. And equally certainly a "sound knowledge of constitutional law" can be found outside the ranks of the existing judiciary.
Perhaps, therefore, it is time to think outside the box when submitting nominations to fill the present vacancies, and to contemplate the possibility of at least one or two appointments being made from outside the members of present judiciary. Such appointments would not be without precedent. South Africa's first Constitutional Court bench included at least two persons who had never before served as judges; both were qualified lawyers, but Justice Kate O'Regan came from academia and Justice Albie Sachs was a long-time anti-apartheid activist. Both were generally considered to have performed admirably as Constitutional Court judges and to have brought fresh perspectives to the work of the court. In the United Kingdom, too, there is a recent example of an outstanding barrister being appointed to the highest court.
What Will Happen after the Deadline for Submission of Nominations?
This is regulated by section 180 of the Constitution. Nominations received will be checked to see whether nominees have the necessary qualifications. Qualified candidates must then be subjected to public interviews by the JSC, after which the JSC must prepare a list of its nominees for submission to the President. The President is obliged to make his appointments from the list, although in the unlikely event that he considers no-one on the list is suitable for appointment, he can ask the JSC for a further list which will be binding on him.
The JSC's list must be long enough to allow the President a limited choice when making the appointments. For a single appointment, a list of three nominees is required, but no more. For five appointments a longer list will necessarily be required.
Another relevant factor – for both the JSC and the President – will be the need to achieve the gender balance called for by the Constitution.