Judicial appointments in Zimbabwe

Judges Matter has recently returned from a visit to Harare, Zimbabwe where we joined in a two day discussion workshop around the Zimbabwean judicial appointments process. Hosted by Zimbabwe Lawyers for Human Rights (ZLHR) and the Democratic Governance and Rights Unit (DGRU) the workshop was well attended and provided fascinating insight in the Zimbabwe process.

The one question we found most interesting is just how much say the Zimbabwean President, currently President Mugabe, gets in the judicial appointments in Zimbabwe. A lot, is the simple answer. For appointments to the High Court the Zimbabwe JSC submits a list of candidates to the President, as in South Africa. The difference is that three candidates must be submitted for each position. So if eight positions need to be filled, 24 names need to be sent to the President, who then has a free hand in making the appointments from there. If the President feels the names submitted are not suitable, he can ask for the Zimbabwe JSC to submit a further list of three qualified persons.

For the constitutional court, the Zimbabwe JSC sends one name per position, and the President has no discretion. So it is almost an exact mirror of the South African system – no discretion in the lower courts, and some discretion in the higher courts versus discretion in the lower courts, and none in the highest court.

These provisions were intended to curb the abuse of political power by the President; however it is clearly an open question as to whether this structure has had the desired effect.

The constitution also gives the Zimbabwean President the power to nominate candidates. Obviously, this gives candidates an advantage in that it signals the President will in all likelihood approve the candidates he nominates. These nominees are not made public. In South Africa, the President has never nominated candidates, and while there is no legislation which specifically bars him from doing so, the separation of powers doctrine makes it highly unlikely that this would be possible.

One way in which the appointments processes are now very similar is that the advertising and interviews of the candidates by the respective JSCs are open. With positions opening up in the Zimbabwe Supreme Court, these provisions around transparency will be of great value to observers of the judicial appointment process.