Chief Court Reporter
AN urgent application seeking an order directing the Judicial Service Commission (JSC) to consider practising lawyers for appointment as judges of the Constitutional and Supreme Courts has been thrown out because no court can prescribe the future actions of the JSC, the President and the Justice Ministry when they perform their constitutional roles.
Once the court makes a finding that the relief sought in an application is legally incompetent, the matter is resolved on that basis because no court will grant an unlawful order.
Chamunorwa Chingwe, a law student at the Zimbabwe Ezekiel Guti University, early this month approached the High Court after hearing that the JSC was carrying out consultations to appoint Supreme Court judges, but would only consider sitting justices of the High Court.
Chingwe wanted to interdict the JSC, President Mnangagwa and the Minister of Justice, Legal and Parliamentary Affairs, all cited as respondents, from proceeding with the appointment of Supreme Court judges without following the process that would allow all those qualified under the Constitution, which would include senior lawyers to be considered as well.
Through his legal counsel, Chingwe argued that the selection process must abide by the statutes which allow for the appointment of any man or woman who meets the requirements set out under Section 178 of the Constitution, but he failed in his papers to disclose a legally supportable cause of action.
Dismissing the matter, Justice Tawanda Chitapi ruled that the order sought was incompetent, finding that Chingwe acted precipitately in filing the application because the court was legally incompetent to order how the JSC, the President and the minister were supposed to carry out their function.
He had sought to prescribe to the appointing authority how the right to appoint judges in terms of subsection (4a) of section 180 of the Constitution should be carried out, but could not state the source of the prescribed steps.
“The court is not empowered in terms of the Constitution to prescribe how the appointing authority must carry out the process of appointment of Supreme and Constitutional Court judges using the recommendation methods,” said Justice Chitapi.
“If the courts were to do so, the exercise and decision thereon would be unlawful. The court can only at best review a process which has been carried out by the appointing authority on review where grounds for such review are advanced. The court would have a right to review the actions done after the event.”
Justice Chitapi also noted that the judges have already been appointed, hence, the application was overtaken by events to warrant intervention.
However, Chingwe persisted with the application arguing that the respondents could still make further appointments in terms of the invocation of a process which he impugned.
But in the judge’s view, the appointments made would have to be considered insofar as they impact on the application on the findings made on the incompetence of the relief sought.
Zimbabwe has followed the lead of most other jurisdictions and has always appointed appeal judges from the ranks for the more experienced trial changes.
While constitutions have suggested that appeal judges can come from outside the ranks of the judiciary, no one has ever reached the Supreme Court bench except by way of the High Court bench.
For the first Constitutional Court bench applications were called for and interviews held. But in the end the entire bench came from the ranks of the more experienced Supreme Court judges, and their replacements came from ranks of the more experienced High Court judges.