The interviews are a constitutional requirement, part of the process outlined in section 180 of the Constitution that will in due course see the President choosing new Supreme Court judges from a list submitted to him by the JSC.
By public notice given in June, the JSC advertised the four vacancies and called on the public to nominate candidates [covered in Court Watch of 20th June]. The deadline for submission of nominations was 11th July.
Nominations received were assessed and qualified nominees were required to fill in a detailed questionnaire. Only those who completed the questionnaire in time were accepted for the public interviews stage.
While requiring JSC to conduct all its business in a fair, just and transparent manner [Constitution, section 191], the Constitution does not go into detail about how it should fulfil its section 180 mandate in relation to the appointment of judges. It says little, for instance, about the handling of the nominations the JSC receives or how it should conduct the public interviews of candidates for judicial appointments. In the preparation of the rest of this bulletin, therefore, we have made use of the JSC’s recently published Guidelines on the Appointment of Judges [soft copy available via this link to the Veritas website]. The booklet is a useful elaboration of the processes the JSC will follow in fulfilling its constitutional mandate.
In addition to the publication of the candidates to be interviewed and the time and place of the interviews, the Guidelines provide for the list of nominees to be submitted to the Law Society of Zimbabwe and other relevant organisations for comments on the professional conduct of the nominees, to be taken into account by the JSC in assessing the nominees [Guidelines, section 10].
There is also provision for comments on the nominees to be submitted by any member of the public following publication of the list of candidates. But anonymous comments will not be entertained [Guidelines, section 11].
The JSC will inform a nominee of adverse comments received regarding him or her, and may question the nominee on the comments during the public interview, “with a view to determining whether or not the adverse comments will have a bearing on the nominee’s probity”.
Deadline for comments: Comments from members of the public should be submitted in writing to the JSC as soon as possible, to allow the JSC time to inform nominees about adverse comments. The JSC offices are in the Old Supreme Court Building, corner Kwame Nkrumah Ave and Third Street, Harare [next door to the public entrance to Parliament]. Telephone number is Harare 704118.
- Media representatives and members of the public will be entitled to be present to observe the proceedings.
- The chairperson of the JSC, Chief Justice Chidyausiku, or the Deputy Chief Justice will preside over the proceedings.
All JSC members present will have an opportunity to put questions to interviewees.
- Questioning will not necessarily entail uniformity of questions or in interview length, both of which will be in the JSC’s discretion. Candidates may be asked questions about comments received from the Law Society or members of the public. Comment: This contrasts favourably with the rigid, mechanical procedure adopted by Parliament for the public interviews of candidates for appointment as members of the independent constitutional commissions. Under that much-criticised procedure, interview length is limited and uniform, a short list of standard questions is formulated beforehand and there is no deviation from the list, meaning there is no customising of questions to test the merits of a particular candidate.
- During the interviews, JSC members will score candidates on each of nine qualities: competence, integrity, industry, independence, experience, good judgment including common sense, relevant legal and life experiences; commitment to commitment to community and public service, potential for the post applied for.
Suggestion: That interviews be televised live The Guidelines say nothing about televising the interviews, but this would be a desirable development. It would enhance the transparency of the proceedings and cater for the wider public interest by enabling the whole nation, including citizens based outside Harare, to take an interest in the proceedings. In South Africa the public interviews of judicial candidates by their Judicial Service Commission are televised live, and this is regarded as promoting citizens’ confidence and pride in their judicial system.
The JSC’s deliberations after the interviews will be held in private. They will take into account performance at the interviews, any comments received from the Law Society, other relevant organisations or the public, and the information supplied by nominees in answering the questionnaire. Deliberations on the suitability of nominees will be based on merit. Deliberations on the final list will take into account the diverse and gender composition of Zimbabwe which the judiciary must reflect. Having deliberated, the JSC must formally resolve on the list of names to be submitted to the President [Guidelines, section 16; Constitution, section 9(1)(a) on appointments to be primarily on merit, and section 184 on appointments to reflect broadly the diversity and gender composition of Zimbabwe]. The list will then be submitted to the President.
How many names must be on the list for the President?
Section 180(2) of the Constitution provides directly only for the situation where there is one appointment to be made, in which case there must be three names on the list. How this should be adapted to the present facts – four vacancies and eight interview candidates – is not expressly covered. It is for the JSC to decide on a reasonable, common-sense answer to this question.
Although the Guidelines do not require it, it is desirable in the interests of transparency that the JSC publish the list of names forwarded to the President.
The President must make the necessary appointments from the list, unless he considers that none of the persons on the list are “suitable for appointment”. If he considers that none are suitable, he must communicate that to the JSC and require it to submit a further list of qualified persons, from which he must then make his appointments. The appointments must be published in the Government Gazette. [Constitution, section 180].
Comment: The President cannot appoint someone whose name has not been submitted by the JSC. This differs from the position under the former Constitution, under which the President had to consult the JSC before making judicial appointments, but was free, if he wished, to reject its advice and appoint someone it had not recommended.
There are two women on the list of candidates. The present complement of the Supreme Court is thirteen, of whom six are women. One of those women, Justice Vernanda Ziyambi, is due to retire in December.