The Sunday Mail
Sharon Munjenjema
Treasury has given the Judicial Services Commission (JSC) the nod to begin recruiting staffers of the Constitutional Court next month, while the selection of judges will begin thereafter as efforts to decouple it from the Supreme Court gathers momentum.
Currently, a single panel of judges has been superintending over both the Supreme Court and the Constitutional Court.
Although Section 183 of the Constitution prohibits the appointment of judicial officers in more than one court, a seven-year transitional clause — through part 18(2) of the Sixth Schedule of the Constitution — was put in place to enable Supreme Court judges to serve in the Constitutional Court, which was borne out of the 2013 Constitution.
However, the clause lapses on May 22 next year.
JSC secretary Mr Walter Chikwana told The Sunday Mail that the separation of the two courts has already begun.
But the recruitment of judges will only commence once the JSC gets the greenlight from Government.
“We have already been given authority by Treasury to recruit staff for the Constitutional Court, and we will be starting in June because the staff we have at the moment is Supreme Court staff. We have started on that process already so that when the two courts separate, we are going to have staff for both,” said Mr Chikwana.
“The Supreme Court will be located on its own and the Constitutional Court on its own. The judges are going to separate; we will have seven judges of the Constitutional Court and the other judges of the Supreme Court,” he said.
Efforts to equip both courts, he added, are underway, including designing of Constitutional Court judges’ robes.
Once the Constitutional Court has been duly constituted, the staff and secretariat of the Supreme Court will move back to the Supreme Court building.
The new judges will also be recruited in line with the country’s supreme law.
“In terms of Section 180 of the Constitution, whenever there is a vacancy, the JSC is required to declare it and advertise it and conduct public interviews. After they are done, the names are submitted to His Excellency (President Emmerson Mnangagwa) and he makes the necessary appointments,” explained Mr Chikwana.
In essence, Section 166 of the Constitution stipulates that a total of seven judges – including the Chief Justice (Luke Malaba) and Deputy Chief Justice (Elizabeth Gwaunza) – shall sit in the Constitutional Court.
The Chief Justice may also appoint an acting judge if the services are required.
Qualifying judges to this superior court should necessarily be more than 40-years-old and have the relevant experience.
In fact, Section 177 of the Constitution stipulates that a candidate should have “been a judge of a court with unlimited jurisdiction in civil or criminal matters in the country in which the common law is Roman-Dutch or English, and English is an officially recognised language”.
They should also have practiced law for at least 12 years in Zimbabwe or any country in which the common law is Roman-Dutch law.
Advocate Tinomudaishe Chinyoka said current efforts to separate the two courts are in line with international best practice.
“The separation allows for the Constitutional Court to specialise. It means when people are dissatisfied with the judgement of the Supreme Court and they appeal (to the Constitutional Court), we won’t have a situation where we will find the same judges there.
“Our Constitution is fairly new and as such, lawyers are constantly testing its provisions and for that reason our Constitutional Court is going to be very busy in the next few years and this will enable efficiency,” he said.
