APPOINTMENT AND REMOVAL OF JUDGES AND OTHER … · writing session. • This session is...

BY THE HONOURABLE MRS JUSTICE E.C. GWAUNZA, DEPUTY CHIEF JUSTICE,

AT THE

JUDICIAL SERVICE COMMISSION COMMISSIONERS ORIENTATION

(HARARE: 20 JUNE 2020)

APPOINTMENT AND REMOVAL OF

JUDGES AND OTHER

CONSTITUTIONAL APPOINTEES

ZIMBABWE

APPOINTMENT OF

JUDGES AND OTHER

CONSTITUTIONAL

APPOINTEES

INTRODUCTION

ZIMBABWE

• The integrity of the selection and appointment

process of judges has a strong bearing on the

institutional independence of the judiciary in

general and the decisional independence of the

individual judge in particular.

INTRODUCTION CONTINUED

ZIMBABWE

As a result, the Constitution provides for a process

designed to achieve transparency, fairness and

merit-based appointments of judicial officers. Section 180

of the Constitution provides:“180 Appointment of judges

(1) The Chief Justice, the Deputy Chief Justice, and the Judge President of

the High Court and all other judges are appointed by the President in

accordance with this section.

(2) The Chief Justice, the Deputy Chief Justice, and the Judge President of

the High Court shall be appointed by the President after consultation

with the Judicial Service Commission.

(3) …………..


ZIMBABWE

(4) Whenever it is necessary to appoint a judge other than the

Chief Justice, Deputy Chief Justice or Judge President of the

High Court, the Judicial Service Commission must—

(a) advertise the position; and

(b) invite the President and the public to make nominations; and

(c) conduct public interviews of prospective candidates; and

(d) prepare a list of three qualified persons as nominees for the

office; and

(e) submit the list to the President;

whereupon, subject to subsection (5), the President must appoint

one of the nominees to the office concerned.


ZIMBABWE

(5) If the President considers that none of the persons on the

list submitted to him or her in terms of subsection (4)(e) are

suitable for appointment to the office, he or she must require

the Judicial Service Commission to submit a further list of

three qualified persons, whereupon the President must

appoint one of the nominees to the office concerned.”

• Commissioners play a critical role in the JSC’s

compliance with the above provision.


ZIMBABWE

• In addition to the above constitutional imperative, the

Southern Africa Chief Justices’ Forum (SACJF), to which

Zimbabwe is a member, cognisant of the need to

enhance independence of the judiciaries of the region,

has drafted guidelines to assist member jurisdictions in the

development of legislation, policy and best practice on

the selection and appointment of judicial officers.


ZIMBABWE

• The guidelines have come to be known as the Lilongwe

Principles and Guidelines on the Selection and

Appointment of Judicial Officers.

• The aims underlying the Principles relate to the

following: -

1. Ensuring that transparency permeates every stage of

the selection process.


ZIMBABWE

2. Independence and impartiality of the section and appointing

authority itself.

3. Fairness of the selection process.

4. Appointees should exceed minimum standards of competency,

diligence and ethics.

5. Appointment must be on merit.

6. Stakeholder engagement and participation.

7. Objective criteria for selection.

8. Reflection of diversity in the appointments.


ZIMBABWE

While the Principles largely remain as guidelines, they are

a safeguard for a transparent selection process and

adherence to them ensures compliance with the

constitutional imperatives of Section 180 of the

Constitution.


ZIMBABWE

• Locally, the Judicial Service Commission has published

guidelines on the appointment of judges. These guidelines

provide a step-by-step roadmap in the selection process

outlining what must be done at each stage.

• It is important that Commissioners acquaint themselves

with these guidelines in order to be effective in carrying out

their mandate during the process.


ZIMBABWE

• This is so because the Commission is enjoined in

terms of section 191 of the Constitution to conduct

its business in a fair, just and transparent manner.

MAJOR FEATURES OF THE SELECTION

PROCESS

The following are the major features

of the selection process and how it

is conducted to meet the

requirements of the constitutional

provisions:-

ZIMBABWE

A. INDEPENDENCE OF THE SELECTION

AND APPOINTMENT AUTHORITIES

The selection process is presided over by

the Judicial Service Commission (“the

Commission”) under the direction of the

Chief Justice. The Commission is an

independent body with a broad

involvement from a wide range of

representatives.

ZIMBABWE

A. INDEPENDENCE OF THE SELECTION AND

APPOINTMENT AUTHORITIES CONT• Membership is drawn from eminent lawyers

seconded by the Law Society, a professor of law

selected by membership of a law lecturers’ body,

Judges, the Attorney General and the chairperson

of the Civil Service Commission.

• The Chief Justice, Deputy Chief Justice, Judge

President and Chief Magistrate are also members.

The Chief Justice as the head of judiciary and

chairperson of the Commission represents

the judiciary in the selection process.ZIMBABWE

B. FAIRNESS OF THE SELECTION PROCESS

• All participants are given equal

opportunity and are similarly treated in

that the same set of questions is asked.

• The candidates are placed in a

“quarantine” room during the interview

process to eliminate the possibility of

other candidates having access to the

questions once the interviews start.ZIMBABWE

B. FAIRNESS OF THE SELECTION PROCESS CONT

• Every member of the Commission on the

interview panel independently scores the

candidates.

• This is to ensure that chances of abuse of

discretion, arbitrary interference and

unconscious bias are guarded against.

• The diversity and backgrounds of the

membership also acts as a guarantee for

fairness.ZIMBABWE

C. APPOINTEES MUST EXCEED MINIMUM

STANDARDS OF COMPETENCY AND ETHICS• Where the Commission deems it necessary,

a two-part interview process is done.

• First, the candidates participate in a short,

written interview where a wide range of

legal questions are asked in a judgment-

writing session.

• This session is administered by a panel of

Judges or lawyers of good standing.ZIMBABWE


STANDARDS OF COMPETENCY AND ETHICS CONT

• Second, the participants are then subjected

to a public oral interview, which basically

entails the Judicial Service Commission

conducting interviews in public.

• This elaborate and intensive process is aimed

at ensuring that the appointees meet the

minimum standard of competency which

entail that he/she must:-ZIMBABWE



• Be independent and impartial;

• Be of reputable conduct and spotless record

of integrity;

• Have outstanding knowledge of the law;

• Possess excellent written and oral

communication skills and analytical

competency;

ZIMBABWE



• Show commitment to the judiciary as a

public institution; and

• Have the ability to strike a sound

balance between a high level of

productivity, the quality of judicial

decisions and a careful consideration of

cases.ZIMBABWE



ZIMBABWE

• At the conclusion of the selection process, a list is

prepared according to merit and the list is submitted to

the President for appointment. It must be noted that

section 180 (4) of the Constitution is couched in

peremptory terms obliging the President to appoint from

the list submitted by the Judicial Service Commission.



ZIMBABWE

• The discretion accorded to the President to

choose from the list of three is necessary to

accommodate other objective considerations

such as gender, ethnicity, geographical and

regional representation, race, disability, diversity

in different backgrounds etcetera.

D. CRITERIA

ZIMBABWE

• The criteria for selection is constitutionally

prescribed. Sections 177-9 set out the qualifications

for persons to be appointed to the Labour Court,

Administrative Court, High Court, Supreme Court

and Constitutional Court benches.

• A law degree and a minimum of 7 years post

qualification experience are prescribed.

D. CRITERIA CONTINUED

ZIMBABWE

• In addition, the person must be at least forty

years old and must also be a fit and proper

person to hold the judicial office.


ZIMBABWE

• The character and integrity of the candidates

must meet the standards set out in the Judicial

Service (Code of Ethics), 2012 which provides to

the following effect:

(1) A judicial officer shall ensure that his or her

conduct, in and outside court, is above reproach

in the view of reasonable, fair-minded and

informed persons.


ZIMBABWE

(2) A judicial officer shall not allow family, social,

political, religious or other like relationships to

influence his or her judicial conduct or judgment.

(3) A judicial officer shall participate in establishing,

maintaining and enforcing high standards of

conduct, and shall personally observe those

standards, so that the integrity of the judiciary

may be preserved.


ZIMBABWE

• Also to be noted in section 180 is the broader and

more pronounced role of the Commission in the

whole process.

• Whenever a vacancy is to be filled, the Commission

invites nominations from the public through an

advertisement in all publicly circulating newspapers

and a reasonable time given for the nomination

process.


ZIMBABWE

• All nominated persons are entitled to participate

starting with the written screening interview.

• Those who may not have made the grade in the

first stage may still be entitled to participate in

the second stage, the public oral interviews.

E. SOURCING AND SHORTLISTING OF

CANDIDATES: THE PROCESS

ZIMBABWE

1. DECLARATION OF A VACANCY• The Chief Justice, as head of the judiciary

advises the Commission of a vacancy or vacancies

in any court.

• In practice, the Chief Justice would have in turn

taken advice or would have discussed the

issue with the appropriate head of the court to

which the vacancy relates.



ZIMBABWE

1. DECLARATION OF A VACANCY• This is a matter purely in the hands of the judiciary

as headed by the Chief Justice and the executive

has no role to play in this regard.



ZIMBABWE

2. ADVERTISEMENT OF THE VACANCY

• The Constitution mandates that the vacancy be

advertised, this is the first of many transparent steps

that the Constitution demands in the process.

• In practice, this advertisement is widely circulated

in the local print and electronic media i.e. the

Judicial Service Commission website.



ZIMBABWE


• It outlines the Court for which the vacancy

has arisen, the number of vacancies available

and the requisite qualifications for persons to

be appointed to that court.



ZIMBABWE


• The advertisement also calls upon members of

the public intending to nominate candidates to

obtain forms at designated offices.

• The President is also invited to nominate

Candidates by way of a letter.



ZIMBABWE


• To ensure that interested people from the whole

country can access nomination forms; these are

made available at at least the ten Magistrates’

Provincial Court centres throughout the country

and are also downloadable from the Judicial

Service Commission website.



ZIMBABWE

3. MASTERLISTING OF CANDIDATES FOR APPOINTMENT

• After receiving nominations and CVs, the Judicial

Service Commission produces a master-list of all the

candidates nominated.

• This is for purposes of transparency and providing

a summary of the profile of each candidate in

terms of:-



ZIMBABWE

3. MASTERLISTING OF CANDIDATES FOR APPOINTMENT

o name of candidate;

o gender;

o date of birth/age;

o citizenship; and

o qualifications as provided by the Constitution.



ZIMBABWE

4. SHORTLISTING OF CANDIDATES

• In this process the Commission is guided strictly by the

criteria given in the Constitution relating to qualifications.

• Every nominee who meets the constitutionally provided

requirements and is thereby not disqualified for

appointment is entitled to be interviewed in public.



ZIMBABWE


• The prospective candidates are all invited to

participate in a screening written interview followed by a

public oral interview.



ZIMBABWE


• The practical effect of this is that if for instance there

are a hundred nominees who qualify in terms of the

constitutional requirements for one post, they all have to

be interviewed.



ZIMBABWE


• In one set of interviews for judges of the High Court,

the Commission interviewed 46 candidates.

• The Interviews had to be spread over a number of

days.



ZIMBABWE

5. COMPLETION OF A SPECIALLY DESIGNED

QUESTIONNAIRE BY EACH OF THE SHORTLISTED CANDIDATES

• Each shortlisted candidate completes a specially

designed questionnaire which is returnable to the

Commission within a specified period and prior to the

interviews.



ZIMBABWE


QUESTIONNAIRE BY EACH OF THE SHORTLISTED

CANDIDATES

• This form provides useful and critical information about

the candidate that does not ordinarily appear on a CV

such as:-

o Health issues;



ZIMBABWE



o Indiscretions which may cause embarrassment to the

nominee or to the judiciary after appointment;

o Number of partly heard matters (if the candidate is

a serving Judge seeking appointment to a higher

court);



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o Number of reserved judgments (if the candidate is a

serving Judge seeking appointment to a higher court);

o Contributions made to the development of the law

etc.



ZIMBABWE

5. COMPLETION OF A SPECIALLY DESIGNED QUESTIONNAIRE BY

EACH OF THE SHORTLISTED CANDIDATES

• The duly completed questionnaire will also be part of

the package that will be given to the Commissioners in

preparation for interviews and some of the questions that

will be put to the nominee during the public interview

arise from the information disclosed in the questionnaire.



ZIMBABWE

6. RELEASE OF A PRESS STATEMENT INFORMING ALL

MEDIA HOUSES AND THE PUBLIC ABOUT THE

INTERVIEWS

• In keeping with the public nature of the interviews, the

Commission releases a press statement informing all media

houses and members of the public about the dates, times

and venue of the interviews as well as the names of

the shortlisted candidates to be interviewed.



ZIMBABWE



INTERVIEWS

• The Commission does not invite members of the public

to submit any comments that they may have on the

nominees but once the names of the prospective

candidates have been publicised, comments from

members of the public may be received, and in practice

such comments sometimes allege acts of misconduct

or unethical behaviour on the part of some of the

candidates.



ZIMBABWE



INTERVIEWS• In practice, the Law Society is invited to submit

comments as the body that regulates the legal

profession in Zimbabwe.

E. DECISION MAKING

ZIMBABWE

• The guidelines require that the selection process

yields a fair, objective decision-making process

that is based on a weighing of the pre-set criteria.

• In this regard, the interviewing panel adopts the

following objective criteria to come up with a

decision on who would have qualified out of

the interview process: -

E. DECISION MAKING CONTINUED

ZIMBABWE

• A set of standard questions is put to each and

every candidate. Each of the Commissioners is

then given an opportunity to put questions to

the candidate. The questions must, as far as is

practicable, be uniform.


ZIMBABWE

• Any adverse comments received from members

of the public or other professional bodies and

organisations are publicly revealed to enable

the affected candidate to comment on them.


ZIMBABWE

• The practice is that the candidate would have

been given an opportunity to respond before the

actual interview and advised of the possibility of

questioning at the interviews to allow him/her to

prepare a response to them if any.


ZIMBABWE

• Each Commissioner scores each candidate

independently on a score sheet which is

pre -agreed to by the Commission.


ZIMBABWE

• At the end of the public interview process,

the Commissioners retire for deliberations and using

the scoring criteria, the requisite number of

candidates with the highest mark is put together.

• This is the list that is forwarded to the President

by the Commission through the Secretary for

appointment of a Judge.


ZIMBABWE

• This same process is followed, with the necessary

modifications, in the appointment of the

Prosecutor General in terms of section 259 (3) of

the Constitution.

REMOVAL OF JUDGES

AND OTHER

CONSTITUTIONAL

APPOINTEES

ZIMBABWE

• The Judicial Service Commission plays a

pivotal role in the process of removal from

office of Judges, Commissioners of all

Independent Commissions, ZACC

Commissioners, members of the Zimbabwe

Land Commission and the Prosecutor-General.

INTRODUCTION

ZIMBABWE

• Section 237 (3) of the Constitution provides

that the procedure for removal of judges from

office applies to the removal from office of a

member of an Independent Commission.

THE LEGISLATIVE FRAMEWORK

ZIMBABWE

• Section 256 stipulates that provisions relating

to removal of Commissioners of Independent

Commissions [section 237 (3)] apply to the

Zimbabwe Anti-Corruption Commission and

its members as if it were an independent

Commission.

THE LEGISLATIVE FRAMEWORK CONTINUED

ZIMBABWE

• Section 259 (7) of the Constitution also

enacts that the provisions relating to the

removal of a Judge from office apply to

the removal of the Prosecutor-General.


ZIMBABWE

• Finally, Section 296 (3) of the Constitution

provides that ‘section 237 applies in

relation to the removal from office of

members of the Zimbabwe Land

Commission’.


ZIMBABWE

• The procedure for removal from office of a

Judge, which is provided for in Section 187 of

the Constitution, essentially encompasses the

involvement of two bodies which are the

Judicial Service Commission and the tribunal

appointed by the President for the purpose.

THE PROCEDURE

ZIMBABWE

• In practice, the process takes the following

format :-

A Complaint

• The Judicial Service Commission receives a

complaint, usually for misconduct on the part of the

office bearer concerned.

THE PROCEDURE CONTINUED

ZIMBABWE

• The complaint must be in writing specifying the

facts relied on and the basis for the complaint.

• The Commission is not precluded from instigating

the process on its own motion particularly where

the alleged misconduct is within the knowledge of

the Commission.


ZIMBABWE

Investigation

• Once the Commission becomes aware of the

complaint or alleged misconduct, it must consider,

by undertaking such ‘informal’ investigation as it

may deem necessary, whether the complaint or

perceived misconduct discloses a ground for

removal under section 187.


ZIMBABWE

• In doing so, the Commission must decide if an

investigation must be launched. If the Commission

decides that an investigation is warranted, it invites

the office bearer to comment and make

representations on the allegations.


ZIMBABWE

• Where necessary, the complainant is again

invited to comment on the representations

received from the subject of the investigation.


ZIMBABWE

•The opportunity afforded to the office bearer to

make representations before a decision is made by

the Commission is necessary to ensure fairness of

the process and observance of due process and

the audi alteram partem rule.



ZIMBABWE

3. Decision and Referral

• The Commission must then consider the

complaint and any other representations made by

the office bearer with a view to make a decision

on whether the complaint is meritorious and

deserving of the attention of the President.


ZIMBABWE

• If it is found to lack merit, the complaint is

dismissed. The reasons could be that:-

i. No ground for removal from office is disclosed;

or;

ii. The complaint is frivolous, vexatious or not

made in good faith; or

iii. The subject matter is trivial; or

iv. It relates solely or essentially to the merits of a

judgment or order.


ZIMBABWE

• If a decision is taken that there is merit in the allegations,

a recommendation is made to the President for the setting

up of a tribunal.

• Once the matter is referred to the President, the

Commission ceases to be seized with the matter.

• In practice, the responsibility has become that of the

Ministry of Justice, Legal and Parliamentary Affairs.


ZIMBABWE

• The ultimate decision of the Commission, that

is whether to refer a matter to the President or

not, must be communicated to the office

bearer.


ZIMBABWE

• The decision of the Commission on the

matter is taken in terms of the rules that

govern meetings of the Commission.


ZIMBABWE

• Any question before the Commission is taken on

the basis of consensus. If consensus of the

members cannot be procured, the question is

determined by the concurrence of the

majority of members present by way of a vote.

CONCLUSION

ZIMBABWE

It must be emphasized that the values of independence,

fairness and impartiality permeate all the stages of the

process of appointment and removal of Judges and

other appointees as provided in the Constitution.

Commissioners are expected to be objective in every

part of the decision-making process, guided by the

principles of justice, fairness and transparency.

THE END,

THANK YOU

APPOINTMENT AND REMOVAL OF JUDGES AND OTHER … · writing session. • This session is...

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