In the National Assembly 6th June 2017

Constitution of Zimbabwe Amendment (No. 1) Bill

Report by the Portfolio Committee on Justice, Legal and Parliamentary Affairs

INTRODUCTION

On 3rd January, 2017 under the General Notice 1/2017, Constitution of Zimbabwe Amendment (No.1) Bill [H.B 1, 2017] was published in terms of Section 328 (3) of the Constitution.

The Bill seeks to explicitly subordinate the Labour Court and the Administrative Court to the High Court. This will be achieved by amending Sections 172 (1) (a) and 173 (1) (a) of the Constitution, which currently provides that the Labour Court and the Administrative Court are headed by a ‘Judge President’.

The Bill seeks to amend, Section 174 of the Constitution by the addition of subsection (2) that explicitly subordinates the two courts to the High Court but maintains the equality of basic conditions of service between judges of the High Court and judges of the two subordinate courts.

The Bill also seeks to change the procedure outlined in Section 180 of the Constitution; providing for the appointment of the Chief Justice, Deputy Chief Justice and the Judge President, as well as that of appointing the heads of the Labour Court and Administrative Court (now to be designated as ‘senior judges’).

2. METHODOLOGY

Pursuant to provisions of Section 328(4) of the Constitution, the committee invited members of the public to express their views on the proposed Bill in public meetings and through written submissions after convening meetings in Harare, Bulawayo, Chinhoyi, Gwanda, Gweru, Hwange, Lupane, Marondera, Masvingo, Mount Darwin, and Mutare. Other than the countrywide tours and written submissions, the Committee also piloted a radio public hearing that was hosted by Star FM.

3. ATTENDANCE BY MEMBERS OF THE PUBLIC

Statistics of attendance to the public hearings by members of the public were as follows:

4. SUBMISSIONS FROM MEMBERS OF THE PUBLIC

4.1 Short Title

The Short Title is not consistent with the title of the Constitution. Members suggested that the title of the Constitution of Zimbabwe Amendment (No.20) Act 2013 should be amended to read Constitution of Zimbabwe, 2013 so that this amendment becomes No. 1.

4.2 Interpretation

No issues.

4.3 Amendment of Section 172, 173 and 174 of the Constitution

Members of the public expressed the need to prioritise alignment

of laws to the Constitution, rather than amending it in its infancy.

Members of the public queried the motivation of the amendment. In respect of the subordination of the Labour Court and the Administrative Court to the High Court, many submitted that the clarification could have been easily achieved by amending the Acts of Parliament providing for the exercise of jurisdiction by the High Court, Labour Court and Administrative Court, or issuing practice directions by the High Court without amending the Constitution. Some members felt that this amendment would increase legal costs to citizens litigating in the two courts.

However, there was another view that the amendment seeks to

clarify the current position which subordinates the Labour Court and the Administrative Court to the High Court. Nothing, save for the wording of the Constitution is being changed. Some said the Constitution should not be amended. There was a view that opposed the amendment, thinking it is the ursuping the powers of the public.

4.4 Amendment to Section 180 of the Constitution

4.4.1 The proposed amendment was viewed as taking away gains made by the Constitution regarding the appointment of judicial officers. The view was that much concentration of power in the President erodes judicial independence. While noting that there is provision for consultation with the Judicial Service Commission, this consultation was viewed as academic since the Commission’s position can be ignored without any adverse consequences to the President’s position. This was so because the amendment provides that where the President proceeds against the advice of the Commission, he or she shall inform the Senate, but the course of action that the Senate has to take is not defined, neither is the purpose of such a referral.

4.4.2 The amendment was also seen as contravening certain provisions of the Constitution, in particular Section 3 (2) (e) on observance of the principle of separation of powers, good governance, rule of law and Section 164(2) on the independence of the Judiciary and the attendant obligations on the State, through legislative and other measures that require the state to protect the courts to ensure their independence, impartiality, dignity and effectiveness.

4.4.3 An alternative view saw this amendment as necessary in that the JSC in its present composition cannot sit and adjudicate over the appointment of its head as they are clearly conflicted. The Constitution in its current format creates a situation where the outgoing Chief Justice interviews his/her successor, thus indirectly influencing the judicial system even in his/her absence, a situation viewed as undesirable. The outgoing Chief Justice, having worked with almost all the prospective candidates has his/her own biases and preferences because of his/her inherent human nature. As such, his involvement in the interviews clearly creates an uneven ground.

4.4.4 In addition, the other view was that leaving the primary selection of the judicial system entirely in the hands of unelected people compromises democratic principles as the Constitution clearly states that judicial authority derives from the people. It was noted that Kenya and Zimbabwe are the only two countries in the world where public interviews are conducted for the appointment of the Chief Justice and those countries that developed the jurisprudence of judicial independence do not subscribe to the current method. 4.5 Amendment of section 181 and the 6th Schedule of the Constitution

No issues.

5. COMMITTEE FINDINGS AND RECOMMENDATIONS

5.1 The Constitution of Zimbabwe Amendment (No.20) Act, 2013 implies that the 2013 Constitution is the twentieth amendment to the Lancaster House Constitution. In the same vein, the Constitution of Zimbabwe Amendment (No. 1) Act, 2016 implies that there is another Act that is being amended which is different from the 2013 Constitution. There is a need to rename the 2013 Constitution to read as ‘Constitution of Zimbabwe Act, 2013’.

5.2 Regarding the subordination of the Labour Court and the Administrative Court to the High Court, the submission that the supposed conflict may be erased by amending the Acts of Parliament providing for the exercise of jurisdiction by the High Court, Labour Court and Administrative Court, or issuing practice directives by the High Court without amending the Constitution. The reason being that Acts of Parliament are subservient to the Constitution, hence their amendment does not cure a constitutional deficit. It should be the other way round.

5.3 The amendments as they pertain to Section 172-174 of the Constitution and paragraph 18(3) of the Sixth Schedule are largely administrative and seeking to bring about clarity to grey areas. The Committee therefore is in agreement with the amendment since it simply seeks to clarify the current position, which subordinates the Labour Court and the Administrative Court to the High Court. There is need for clarity on the remuneration for judges that will come after the amendment.

5.4 The other issue that the public expressed was the need to urgently align laws to the Constitution rather than rush to amend the Constitution. The Committee noted that even though this didn’t apply to this Bill, it was worth noting and urges the Executive to prioritise the alignment of laws to the Constitution.

5.5 Regarding the erosion of judicial independence, the committee noted that judicial independence is a function of many elements and not entirely dependent on appointment procedures. Current practice is not settled on any gold standard for the appointment of judges and the legal practice in many countries, including those that developed the jurisprudence on judicial independence advocate some involvement of the elected representatives of the people in the judicial appointment process. The point to take out of this diversity is the acknowledgement that there is no best system to appoint judges, however novel a given jurisdiction`s system may appear to be. Accordingly, little if anything arises out of the process(es) used to appoint judges. The Committee noted that the responsibility of the judiciary to interpret the laws of the land must vest in individuals who are qualified, professionals, fit and proper.

To the extent that the proposed amendment does not seek to take away from these cardinal baseline requirements, the committee files no objections in this regard. Crucially, the Committee notes that constitutional and other legislative provisions that guarantee judicial independence after appointment greatly advance and secure the integrity of the Bench from all interference. Most importantly are provisions that insulate judges from arbitrary dismissal and also guarantee their remuneration from control and influence by the Executive. The committee notes that whilst the constitution makes reference to the independence of the judiciary, it should be noted that as an arm of state, the judiciary is an independent, yet interrelated and interdependent sphere of the state architecture. It cannot exist as an island or in a vacuum. The need for an interplay between these spheres of the State, to the extent it does not compromise the mandate and integrity of each other, is recommended. That aside, the system of representative democracy which subsists in Zimbabwe is being negated by the current procedure, which leaves the selection of such influential office bearers who define the direction and policy of the country to unelected individuals. It is settled that judicial authority derives from the people, hence the need to change the status quo. As noted before, appointed members of the judiciary should be professionals, qualified, fit and proper. These provisions remain entrenched in the Constitution and the President in making any appointments, should be guided by them, and those appointed should live to the honour of the office to which they are appointed. In addition, appointed judicial officers bear loyalty and allegiance to the Constitution and to their oath of office, and not to processes through which they were appointed. However appointed, a judge should be a man or woman of integrity, and if they live short of standards expected of them, corrective measures as provided for in the Constitution should be activated.

5.6 The Committee further took note of the view that an outgoing Chief Justice cannot chair interviews for his or her successor for the simple reason that he or she is conflicted. Having worked with almost all the prospective candidates, this diminishes the transparency of the whole process in that certain prejudices and biases against some candidates will largely influence the final decision. As such, the outgoing Chief Justice’s involvement in the selection process vitiates the principles of transparency which the same bench seeks to enhance.

In the same vein having the JSC conduct these interviews for the Chief Justice, entails having juniors interviewing their future boss. While on the face of it, it may appear as a noble process, it can create potential conflicts and breed a system of patronage which will contaminate the bench. Simple governance dictates that an independent person or tribunal should adjudicate on the selection process as the bench is exposed to the risk of being indirectly influenced by the outgoing Chief Justice long after he is gone.

5.7 The Committee however, notes that the new Section 180(3) needs some clarification as to the function of the senate after being informed about the decision of the President being at variance with the JSC’s recommendation. In its present format, the notification, according to the committee is only academic. It is the Committee’s recommendation that instead of informing the Senate, the National Assembly must be informed.

6.0 CONCLUSION

It is the Committee’s general conclusion that the amendments as presented, together with our recommendations be adopted by parliament.