“There can be no doubt that we need judges who are both intellectually sound and computer literate. The days of “my secretary this and my secretary that” are long and gone. New age judges should be able to research the internet and type their own decisions without necessarily the aid of a secretary. The question, however, is whether the Constitution allows the JSC to have a private assessment before proceeding to the public interview process.”
M’Lords and Ladies,
IT has been contemptuous of me to withhold several submissions on various legal issues I should have made to this honourable court for its verdict.
For this, I seek the court’s indulgence with an undertaking that I shall appear before you every week to seek your verdict on critical legal matters that need the decision of the land’s highest court.
It is crucial to acknowledge that our Constitution bestows the ultimate judicial authority upon the people of Zimbabwe.
This means there can be no court higher than the one constituted by you, and the entire citizenry of Zimbabwe.
The Judicial Service Commission (JSC) recently advertised vacancies for ten High Court judges and one Administrative Court judge.
Several people applied, and 61 candidates were shortlisted for the first phase of the interviews for the High Court and eight for the Administrative Court.
Those not shortlisted did not meet the criteria, such as being 40 years old.
While, admittedly, age does not always bring wisdom, it is an inescapable formal requirement.
The 61 shortlisted were required to undergo an “amplitude test”.
After this test, 36 lawyers qualified to proceed to the next stage of public oral interviews for the High Court and three for the Administrative Court.
This meant the amplitude test eliminated more than half the candidates.
Those eliminated can, however, take solace from the fact that they are still members of this honourable court and will undoubtedly receive the respect I give to all judges.
It is not the first time public interviews for judges have been held.
Is this the best method?
With the inception of the new Constitution in 2013, this is the fourth time the interviews have been held. (A colleague who has appeared for the interviews on all four occasions has verified this figure for me.)
The issue I bring before this honourable court is whether we have employed the best method to obtain the cream of the legal profession to perform the function of judges.
In addressing this issue, I look at how we currently do it, the murmurs of dissatisfaction from those eliminated and how they do it elsewhere.
I do apologise for the lengthy introduction, but, if the court is so pleased, allow me to proceed with the merits of my submissions.
Public judicial interviews were motivated by the worldwide phenomenon of appointing judges more transparently.
The very first judges in colonial Southern Rhodesia were seconded from the Cape.
As the legal profession grew in the colony, judges were appointed by the Governor from practising advocates at the recommendation of the Minister of Justice.
At independence, the system continued, whereby judges were appointed by the Prime Minister (and then President) after consultation with the JSC.
Besides the formal requirement for appointment, there was a culture to it based on merit and experience.
This led to leading lawyers being appointed even though the system lacked transparency.
These judges were competent and men of integrity, as the decisions they made are still referred to up to today and almost none of them were removed from office for misconduct.
The pitfalls of the culture were that it was nepotistic, racist and sexist.
Like this honourable court, a Judiciary should comprise people from all walks of life.
Old white male judges certainly did not represent the demography of Rhodesia and Zimbabwe.
It is for this reason that this system and culture could not be part of a new free Zimbabwe.
In appointing judges, it is critical to maintain meritocracy on appointment while encouraging inclusivity and diversity.
A strong culture of transparency is not just necessary, it is vital for building trust and maintaining confidence and integrity in the system.
The more transparent the process, the more confident the public can be in the judges appointed.
The honourable court may recall the case of one Constantine Mkinye, a seasoned legal practitioner who, in 2005, flew to the USA with his family and sought asylum.
In his asylum application, he told US authorities he had been offered a High Court judge position. While considering accepting the appointment, he said he was told in no uncertain terms that he would have to make judgments in favour of the government if he wanted to prosper or he would face the music.
He says he declined the offer, and after that, he began being pursued by security officers and had to run for his life.
The Minister of Justice denied that Mkinye had ever been offered a judgeship.
Whether or not Mkinye’s claims are true, the issue at hand is the potential for unverifiable claims to be accepted as facts due to a lack of transparency in the appointment system.
More transparency
This underscores the need for a more transparent process to prevent such situations from arising.
The complaint against the JSC’s current interview method is that such a system is not provided in the Constitution.
The JSC requests nominees submit “a medical report attesting to their fitness” and undergo an amplitude test afterwards.
The medical test is said to violate the right to privacy and discriminate against people living with disabilities.
The amplitude test required nominees to bring their laptops to what was said to be the first stage of the interviews.
For the test, nominees would download a case from the Integrated Electronic Case Management System (IECMS), write a judgment from the facts, and then upload the judgment back into the system.
Those needing assistance downloading and uploading would have to formally declare that they could not use the system without assistance, a factor that would count against them.
The complaint is that the purpose of this first stage needs to be clarified, and the procedures raise suspicions about transparency and fairness as the test results are not disclosed to the public.
It is argued that this is not a public interview and is unconstitutional.
Medical tests
These concerns are valid and should be addressed to ensure a fair and transparent process.
I will start by addressing the first issue of the medical test results.
The Constitution requires judges to be “fit and proper” persons.
This honourable court has defined the phrase “fit and proper” in numerous cases.
The word “fit” must be given its regular grammatical meaning.
A person who seeks to occupy the office of a judge must satisfy the commission that he/she, despite having a physical handicap, is deemed to possess the physical and mental fitness required to endure the demands of a judicial role and carry out the responsibilities associated with it.
With respect, one cannot seek judicial office to obtain medical aid benefits for a chronic illness and, after that, not be able to function as a judge as he/she is mostly on sick leave.
This requirement has nothing to do with people living with disabilities.
It is, therefore, proper that this requirement is being actively pursued by the JSC as part of its constitutional requirements.
Indeed, one cannot be recommended to be a judge when they suffer from an illness that would prevent them from doing their duties.
Amplitude tests
However, the amplitude tests issue is less clear-cut than the above.
The purpose of the test is to probe into the judicial intelligence of nominees.
This time, the JSC went a little further and enquired into the computer literacy of a judge.
There can be no doubt that we need judges who are both intellectually sound and computer literate. The days of “my secretary this and my secretary that” are long and gone.
New age judges should be able to research the internet and type their own decisions without necessarily the aid of a secretary. The question, however, is whether the Constitution allows the JSC to have a private assessment before proceeding to the public interview process.
In South Africa, the country appoints acting judges to determine a potential judge’s judicial intelligence.
In the High Court, the judge presidents are allowed to invite attorneys, advocates, law lecturers and anyone who formally qualifies to be a judge to work as an acting judge.
Acting judges have the same duties, powers and functions as substantive judges during their stints as acting judges.
If these acting judges decide one day to apply to be substantive judges, their performance as acting judges will be paramount in considering their applications.
A judge president will also refrain from re-inviting an acting judge who performs dismally whilst acting.
What is also considered are the appeal judgments when the decisions of an acting judge are appealed against.
When an acting judge applies to be a substantive judge, we already know what kind of judge this judge would be.
Other jurisdictions, including the United States, also use this system.
As will be seen from the public interviews in South Africa, applicants who have never been acting judges are seldom ever appointed, as the competency is judged mainly from the decisions and conduct while one was an acting judge.
Zimbabwe’s system is a gamble, and the JSC attempts to reduce the odds of making a bad bet through the amplitude tests.
Acting judges in Zimbabwe can only be retired judges and can never be legal practitioners or aspiring judges.
We would require a constitutional amendment for this, as currently, this is not provided for.
This still raises the question of whether our amplitude tests are constitutional.
I understand that the test results can be made public, but doing so could embarrass the nominees and jeopardise their future potential applications.
I am advised that the nominees can still insist on a public interview, notwithstanding the test results, but this issue will be brought up in the public interviews and will likely embarrass the nominee.
It is, thus, better to opt out of the process privately and try again next time.
These procedures support the complaint that the marking system is shrouded in secrecy and raises suspicions of corruption.
The JSC can simply deal with this by informing the public and nominees of who is going to assess the amplitude tests and how.
For those that “pass”, the first round should have those results made publicly available to conform to the constitutional requirement of the interviews being done in public.
As it stands, the public does not know anything about the content of these amplitude tests and how the candidates performed.
They clearly do not pass the test of being a public interview.
There must be a clear procedure for allowing nominees who “fail” the amplitude test to proceed to the public interviews if they so wish.
Nominees should also not be surprised by the amplitude test.
If it is a computer literacy test, they must be informed in advance that this will be assessed.
The same goes for a judgment writing test or any sort of test.
The nominees must be able to prepare or opt out early if they believe they need to be up to the task. Avoiding embarrassment for nominees can never be the key consideration when sacrificing transparency, openness, clarity and integrity.
For now, I will refrain from making any submissions on the composition of the JSC itself.
Having a body of totally unelected people being responsible for appointing unelected judges needs me to file a separate petition as this is a matter that needs this honourable court to be constituted for that purpose alone.
For these present purposes, I seek an order that the JSC be guided by the principal of transparency at all stages of the interview process in order to enhance the integrity of the appointment system, which also increases public confidence in our unelected judges who make life-changing decisions on a daily basis.
Respectfully submitted.
Advocate TTG Musarurwa
*The writer is a practising advocate and law lecturer and writes in his personal capacity
