A reflection on Zimbabwe’s JSC interviews for the Supreme Court

Tabeth Masengu is a researcher at the Democratic Governance and Rights Unit (DGRU) and PhD Research fellow at the UCT Department of Public Law and GHENT. She shares her thoughts on the recent Zimbabwean Judicial Service Commission interviews for the Supreme Court:

On 29 September, I sat in a large venue at the Rainbow Towers Hotel in Harare, Zimbabwe, waiting for the Judicial Service Commission (JSC) to start interviewing candidates for the vacancies that were available at the Supreme Court of Zimbabwe. There were four positions up for grabs and eight candidates were taken through the paces; significantly, only two were women.

Having been observing the South African JSC interviews since 2012, the paucity of women was not a new phenomenon. We have had interviews for the Constitutional Court that had five men (February 2013) and seven men for the Supreme Court of Appeal (April 2014) with not a woman in sight. Thus, the paucity of women being interviewed in Harare was only a reminder that gender transformation is a challenge everywhere. It seems that the higher up in the judicial ladder one goes, the scarcer women become. Incidentally though, Zimbabwe’s Supreme Court has 13 judges, of whom six are women, while ours as of March 2016 has 23 judges of whom only six were women.

What was novel in the Zimbabwean JSC interviews however, was the following:

1.) Attendance by the public: Zimbabwe has now abandoned the ‘tap on the shoulder’ type of system where the appointment of judges is driven by the executive. The Zimbabwean Constitution in section 180 now stipulates that positions be publicly advertised; that the public can nominate candidates and that the candidates should be publicly interviewed. This opportunity has not been taken lightly as I noticed when I surveyed the interview room. The venue was filled to capacity, with not less than 140 audience members in the room at some points. Whether it was because the interviews were for the Supreme Court or because the JSC had recently widely published guidelines for the appointment process (even in newspapers), one could not tell. What was obvious though was that the public were eager to be part of a process that is fairly new and this eagerness is a far cry from our interviews here. At most, for interviews in South Africa, the audience is about 10 people; excluding the candidate’s family. At the most recent October JSC interviews, where one vacancy was for the Constitutional Court, you would have thought there would be more people interested in attending but alas – this was not the case. In Harare, I was left wondering whether the novelty of the process would eventually wear off and attendance at the interviews would gradually wane or whether the Zimbabweans were just simply grateful for a process where they can feel like they are willing participants or at least spectators in an event that was previously conducted behind closed doors. Whatever the answer, being in a room filled with eager members of the public made me sad that we do not have the same response in South Africa.

2.) The introduction of the Process: It was surprising to see all the candidates seated in the room before the interviews began. They sat in front of the public facing the commissioners directly opposite them. This meant that the audience would be able to see the commissioners when they appeared, but could not see the candidates faces directly, although they were visible on the TV monitors strategically placed around the venue. At 10am, the commissioners walked in and the Chief Justice (CJ) addressed the audience. It was an unusual experience to have the CJ greet and address the public and the candidates and have him clarify how the process works. He explained that he would ask all the candidates four standard questions and then allow the other commissioners to question them. The public had also been informed prior to the address that all candidates had their electronic gadgets appropriated to avoid any interference (perhaps from family members or the public). The CJ ended off with wishing the candidates the best of luck, before they were all dismissed except for the first interviewee. This address was helpful in that the audience knew what was to be expected, but it also gave me as a member of the public, a sense of recognition. It was as if by addressing the audience, the CJ was not only acknowledging their presence, but also appreciating that they had bothered to attend. This was a nice touch and it made one feel more comfortable in the space.

3.) A small and differently composed JSC: Having been so accustomed to South Africa’s 23 person commission  (and it can go up to 26), it was refreshing to only have to watch eight faces instead of 23. Of the eight commissioners, only one was a woman, which once again was a reminder of the masculine nature of the judiciary and those who appoint its members. Unlike our JSC, the Deputy CJ sits on the commission as does the Attorney General and even a public accountant or auditor (though this commissioner was not present that day). It did have the representatives from the legal profession and the absence of politicians was notable not just in numbers; but in the questions that were posed to candidates. Our South African interviews have become synonymous with questions regarding separation of powers, whether a judge can be a judicial activist and whether judges are judicially accountable. It is not so much the questions that are problematic but the underlying message, especially when a candidate has handed down decisions against government or when there is a topical issue playing out in the background. A case in point is the June 2015 Constitutional Court interviews which came the day after the judiciary had a historic public conference to assert their independence after the Al Bashir decision. Those interviews were laced very overtly with tension and comments between the judiciary and members of the ANC. Hence, it was a nice change to hear judges being asked more about the professional aspect of their office, about their judgements, how they cope in the courts. There was even a simple question (but not well answered by most) of the meaning of the doctrine of stare decisis. This is the doctrine of precedent, where lower courts have to abide by the decisions of higher courts of a similar nature. It was clear that if the candidates were vying for the top court, they needed to be well versed in legal doctrine.

There were many other interesting aspects, such as the allegations that one of the women judges, Priscilla Chigumba, had sought a $20 000 bribe from a litigant and the fact that Judge Mathonsi, had written 330 judgements in one year while other candidates such as Judge Lavender Makoni, the other woman judge, only had 68 written judgements. Even more interesting was that Section 184 of the Constitution says that appointments must reflect broadly the diversity and gender composition of Zimbabwe. This implies that the JSC would have to recommend at least one woman for appointment. The options after the interview were, as a member of the public put it; ‘worrying’. Justice Chigumba who was confident, eloquent and has written lots of judgements is tainted with bribery allegations? Or Justice Makoni, who is the more senior but whom the CJ expressed his displeasure at for her lack of judgement writing and worse that she tried to explain it away by saying she is undaunted with her duties as the head of the Civil division? Whatever the decision, this too shall be a talking point for many months to come as some of our appointments in South Africa have been. In the end one thing remains, irrespective of whether judges are being appointed – the role of the JSC, is never an easy one!