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A Conspectus of the Functions of the Judiciary under the Zimbabwe Constitution 2013

Document Cited in Related
Vincent
Published date01 May 2017
Date01 May 2017
DOI10.3366/ajicl.2017.0192
Pages221-238
INTRODUCTION

The article examines whether the recent adoption of the Zimbabwe Constitution Amendment Act 20 of 20131 is a step in the right direction towards the establishment of constitutional democracy in Zimbabwe. In this regard, the article investigates whether the Zimbabwe Constitution 2013 will enhance the promotion and respect of key democracy-related concepts such as the independence of the judiciary, the rule of law and the doctrine of the separation of powers in Zimbabwe.2 This is done by providing an overview analysis of the relevant provisions of the Zimbabwe Constitution 2013 that, inter alia, deals with the functions of the judiciary.3 This is further undertaken by examining the adequacy of the aforesaid provisions in relation to their practical enforcement and the general promotion of constitutional democracy in Zimbabwe.4 Moreover, in light of this, a synoptical analysis of the gaps and flaws of the provisions dealing with the functions of the judiciary under the Zimbabwe Constitution 2013 will be provided.5 In addition and where applicable, a comparative analysis of these provisions and those that were provided under the Lancaster House Constitution of Zimbabwe6 will be provided. This is done to explore whether the flaws and gaps that were associated with the relevant provisions of the Lancaster House Constitution 20087 are now corrected under the Zimbabwe Constitution 2013. Thereafter, possible recommendations and concluding remarks will be outlined.

 OVERVIEW OF THE FUNCTIONS OF THE JUDICIARY Functions of the Judiciary under the Lancaster House Constitution 2008

Under the Lancaster House Constitution 2008, judicial authority was vested in the Supreme Court, the High Court and other smaller or subordinate courts established in terms of an Act of Parliament.8 Notably, the Supreme Court was the highest and/or final court of appeal on all matters in Zimbabwe under the Lancaster House Constitution 2008.9 It is also important to note that judicial authority could be vested in a person or authority other than a court in terms of an Act of Parliament under the Lancaster House Constitution 2008.10 Likewise, additional functions or judicial authority other than adjudicating functions in a court or in a member of the judiciary could also be exercised by the relevant persons in terms of an Act of Parliament.11 In relation to this, it should be noted that the judiciary was led by the Chief Justice and the Deputy Chief Justice as well as other judges of the Supreme Court.12 Moreover, the Judge President and the other judges of the High Court were also part of the judiciary under the Lancaster House Constitution 2008.13 The judiciary also comprised other persons who were presiding over the subordinate courts14 in terms of an Act of Parliament.15 Given this background, it now suffices to briefly discuss the jurisdiction of the relevant courts and the different roles of the members of the judiciary below.

The Supreme Court was empowered to have superior powers that were binding upon all the other courts in terms of the Lancaster House Constitution 2008.16 In other words, the Supreme Court was a final court of appeal in Zimbabwe under the Lancaster House Constitution 2008.17 The Supreme Court also had jurisdiction and relatively wide powers that could be conferred on it in terms of the Lancaster House Constitution 2008 or an Act of Parliament.18 This indicates that the Chief Justice, the Deputy Chief Justice and other judges that were appointed by the president19 or the Chief Justice20 had authority to adjudicate upon all the matters (including appeals) that could be filed in the Supreme Court. The Deputy Chief Justice could also act as the Chief Justice whenever the office of Chief Justice was vacant or the Chief Justice was unable to perform his or her functions due to illness and/or other causes.21 Furthermore, the registrar of the Supreme Court could also be empowered in terms of an Act of Parliament and in respect of civil cases to:

make orders in uncontested cases that did not deal with the status, custody and/or guardianship of children; and

decide preliminary or interlocutory matters and other related cases without affecting the liberty of the relevant persons.22

 Likewise, the High Court was a superior court of record23 which had jurisdiction and powers that were conferred upon it in terms of the Lancaster House Constitution 2008 or any Act of Parliament.24 Accordingly, the High Court comprised the Chief Justice, the Judge President of the High Court and other relevant judges that were appointed by the president25 or the Chief Justice.26 Strikingly, the Chief Justice was also a judicial member of the High Court. Consequently, the Judge President of the High Court was obliged to take instructions from the Chief Justice.27 In this regard, the Chief Justice could positively interfere with the duties and/or functions of the Judge President of the High Court.28 For instance, the Chief Justice could appoint a judge of the Supreme Court to act as a judge of the High Court after consultation with the Judge President of the High Court.29 Over and above, in most instances only the High Court and the Supreme Court had jurisdiction to hear criminal matters in Zimbabwe.30 This indicates that the Judge President, the Chief Justice and other judges were exclusively empowered to adjudicate on criminal matters under the Lancaster House Constitution 2008. Additionally, the registrar of the High Court was authorised in terms of an Act of Parliament and in respect of civil cases to

make orders in uncontested cases that did not deal with the status, custody and/or guardianship of children; and

decide preliminary or interlocutory matters and other related cases without affecting the liberty of the relevant persons.31

 Nonetheless, it appears that the registrar of the High Court was only restricted to hear certain civil matters that were consistent with the provisions of the relevant statutes.32

Notably, the judicial authority and adjudicating functions stated above were expressly required to be exercised independently (independence of the judiciary).33 Put differently, all the officials of the courts, judges and other relevant members of the judiciary were obliged to execute their duties without undue influence or manipulation from any person.34 Nonetheless, it appears that judges, court officials and other members of the judiciary could still be subjected to undue influence, manipulation or control of other persons where such control was statutorily provided for in the relevant laws.35 This indirectly enabled the members of the executive to negatively interfere with the functions of the judiciary in Zimbabwe.36 In this regard, the less transparent, politically related and/or biased removal and appointments of High Court and Supreme Court judges that occurred in Zimbabwe between 1999 and 2012 is a case in point.37 Moreover, as earlier indicated above, the Lancaster House Constitution 2008 empowered the president to appoint judges after consultation with the Judicial Service Commission (JSC).38 In light of this, the president was also required to inform the Parliament ‘as soon as is practicable’ where the proposed appointment is inconsistent with the recommendations of the JSC.39 Additionally, to qualify for appointment as a judge of the High Court or Supreme Court, the person in question was required to be:

a judge of a court having unlimited jurisdiction in civil or criminal matters in Zimbabwe or another country which employs Roman-Dutch law or English law as common law and English is an official language; or

qualified to practise as a legal practitioner for not less than seven years in Zimbabwe or other relevant jurisdictions.40

 Be that as it may, the author concurs with Madhuku41 who correctly argues that the aforesaid criterion for the appointment of judges was very weak because it to a certain degree it enabled the president to make biased political appointments. This follows the fact that the recommendations of the JSC to the president on the appointment of judges and acting judges42 were not transparent and independent enough since the JSC itself was composed of a majority of members appointed by the president.43 Another flaw is that the president was allowed to broadly appoint other judges merely on the basis of their ability and experience in administration, or their professional qualifications and/or their suitability for appointment.44 This relatively broad and vague provision allowed the president to appoint judges not on the basis of their legal qualifications per se but on the basis of their qualifications45 and suitability. Therefore, unlike the position in the1996 Constitution of South Africa,46 where the president must consult with the JSC and leaders of the political parties represented in Parliament to avoid biased appointment of judges,47 the president was only obliged to consult with the JSC prior to the appointment of judges under the Lancaster House Constitution 2008.48 Due to this and other related flaws, the executive could easily interfere with the independence of the judiciary49 in Zimbabwe under the Lancaster House Constitution 2008. Moreover, the requirement that the Chief Justice, Deputy Chief Justice, Judge President and other judges of the Supreme Court and the High Court were supposed to take an...

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