ARTICLE
14 May 2021

Unpacking Constitutional Amendment No. 2 Act: Implications On The Judiciary

The first week of May 2021 ushered in significant constitutional changes which have been the subject of much debate for the better part of two years since Constitutional Amendment No.2 Bill was gazetted in 2019.
Zimbabwe Government, Public Sector

The first week of May 2021 ushered in significant constitutional changes which have been the subject of much debate for the better part of two years since Constitutional Amendment No.2 Bill was gazetted in 2019.

Changes encapsulated in Constitutional Amendment No.2 have received mixed reviews, with some arguing that the amendments present a marked departure from the democratic spirit and tenor embodied in the Constitution of Zimbabwe

Amendment (No.20) Act 2013; while some quarters have suggested that since the Judicial Service Commission is charged with supervising and appraising judges performance they are better placed to recommend judges for higher office.

Amongst the raft of changes enacted under Constitutional Amendment No.2 Act, include issues such as qualifications to be appointed as President or Vice President, proportional representation of women in Parliament, delimitation of electoral boundaries appointment and promotion of judges as well as the tenure of office for judges.

The following discourse will mainly focus the amendment pertaining to appointment of judges and their respective tenure of office. The authors will endeavour to offer the reader with a balanced critique of the recently enacted changes.

With regards to the judiciary it is pertinent to emphasise that the vibrancy of all democratic societies, is underpinned by an independent judiciary.

Thus, it is contended that any amendments that relate to the appointment of judges and their respective tenure should be conceived and analysed through the prism of fortifying judicial independence.

Indeed section 164 of the Constitution of Zimbabwe entrenches this position within our law. It is provided that the courts are independent and are subject only to the Constitution and the law to which they should apply judiciously without fear or favour.

Akin to the rule of law and independent judiciary forms fundamental building block, founding any democratic society.

The appointment of judges is done in terms of section 180 of the Constitution, where previously under s180 (2) of the Constitution whenever it became necessary to appoint a judge the Judicial Service Commission would advertise the vacancy, invite the President and the public to make nominations, conduct public interview, and then prepare a shortlist of three candidates that would be submitted to the President whose duty was to appoint one of the appointees to the vacant role.

However this process has now been repealed and replaced by Section 180 (4a) introduced by the amendment gives the President the powers to appoint a judge from either the High Court, Supreme Court, Labour Court and the Administrative court to a higher court without the previously prescribed nomination and public interviews.

Proponents of the now repealed process have argued that such process was transparent and enabled the public to participate in process which also gave effect to s184 of the Constitution, which states judicial appointments must reflect broadly the diversity and gender composition of Zimbabwe.

It is contended constituent members of each diverse segment of Zimbabwe's population gave life to this section. The newly enacted s 180(4a) is premised on the fact that it is the Judicial Services Commission that is in a better place to evaluate competency of persons to be appointed to judicial office.

Furthermore the public interview process would each time cause a stir, when senior judges seeking higher offices would fail to answer basis precepts founding our law.

It is argued that such events ultimately had a deleterious effect that diminished the public's confidence of the judiciary.

The authors concede and subscribe to the notion that not only should justice be done, but it should also be seen to be done.

It should however not be done at any cost, moreover if such process diminishes the role and authority of the judiciary in the eyes of the citizenry.

The issue of judges' tenure of office is provided under s186 of the Constitution.

The issue of tenure is a vital cog that gives credence to the fundamental principle of judicial independence.

It premised on the notion that a judicial who exercises judicial authority without confidence of their tenure will not perpetuate judicious conduct by such judicial officers.

The repealed clause consisted of an unconditional clause that judges of the Supreme Court, Constitutional Court and the High Court would retire when they attain the age of seventy years.

However, the amendment has left some components of the repealed section and the constitution gives judges an option to elect to sit on the bench for a further period of five more years subject to approval by the President with the recommendation of the judicial service commission and a physical and mental tests.

A point of distinction between judges of the High Court and judges of the Supreme Court and the Constitutional Court, is that the newly s 186(5) High Court judges must retire upon turning seventy years of age whilst Supreme Court and Constitutional Court Judges have the option to elect a further five year term subject to passing of mental and physical tests plus approval by the President and recommendation of the JSC.

There is a school of thought that argues the term of extension upon reaching the age of seventy exposes judges to external influences that may compromise their independence should they be approved to continue in office.

This argument is borne from the notion that judges upon reaching seventy years of age may become beholden to those that have permitted their extended tenure of office.

Indeed others argue the amendment in respect of tenure compromises judicial independence from the point when they are appointed. These however are moot points and subjective.

The authors hope the discussion above has shown light on the changes effected by the Constitutional Amendment No.2 Act.

Judicial independence should be an inviolate principle and any laws whether inadvertent or not should never be compromised, as judicial independence is a fundamental principle fortifying and perpetuating values consistent within a democratic society.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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