Policy Dialogue

Julian Mugova

16 Jun, 2022

Implications of Constitution Amendment No. 2 on Judicial Independence and the Separation of Powers

To understand the Implications of Constitution Amendment No. 2 on Judicial Independence and the Separation of Powers, one has to understand the history and evolution of s180 and 186 of the Constitution, in light of s189, 190 and 328 of the Constitution

History: COPAC issued three (3) draft constitutions. In the December 2011 edition, an entity termed the Parliamentary Public Appointments Committee was vested with the critical role in appointing persons to key positions such as in the judiciary. This role was removed from the July 2012 draft Constitution, and the final one – in which the President appoints judges at the recommendation of the Judicial Service Commission only.

Whilst this was a welcome development from the previous era in which the President had wide powers of appointing the judiciary, it was not without its downside. The removal of the Parliamentary Public Appointments Committee had the effect of narrowing the gap between the judiciary and the executive in so far as the principle of separation of powers was concerned.

Evolution of section 180 of the Constitution (Appointment of Judges)


The first evolution

The import of Section 180 of the Constitution of Zimbabwe Amendment (No. 20) was to the effect that the President appoints a Judge on the recommendation of the Judicial Service Commission, following advertising, nominations, and public interviews, subsequent to which a list of three (3) names is submitted to the President who then makes the appointment. All Judges were to be subjected to this procedure of appointment, without exception.


The second evolution

Four (4) years after the Constitution (Amendment No. 20) came into being, Constitution Amendment No. 1 of 2017 came into being. Although parts of the original Section 180 were retained in so far as the appointment of Judges was concerned, the section was substituted with a new distinct clause which separated the appointment of the three (3) top most judicial positions from the rest of the Judges.


The focus of the first three (3) sections were dedicated to the appointment of the Chief Justice, Deputy Chief Justice, and Judge President, which import was to the effect that the President appoints the Chief Justice, Deputy Chief Justice, and Judge President of the High Court after consultation with the Judicial Services Commission. It also added the appointment of the Senior Judge of the Labour Court and the Administrative Court, who are appointed by the CJ after consultation with the JSC.


The wording of Section (3) is critical to note, particularly the proviso, which reads:

“If the appointment of a Chief Justice, Deputy Chief Justice or Judge President of the High Court is not consistent with any recommendation made by the Judicial Service Commission in terms of subsection (2), the President shall cause the Senate to be informed as soon as is practicable:

Provided that, for the avoidance of doubt, it is declared that the decision of the President as to such appointment shall be fina1.


The third evolution

A further four (4) years after the first amendment, Constitution Amendment No. 2 of 2021 was instituted, which import is to the effect that the President is allowed to promote Supreme Court and High Court Judges on recommendation of the Judicial Services Commission to a higher Court without having to submit to the procedure of advertising, nominations, and public interviews.


Who is the JSC?

Section 189 of the Constitution establishes the composition of the Judicial Services Commission; being the Chief Justice, Deputy Chief Justice, Judge President of the High Court, a Judge, the Attorney General, and Chief Magistrate, amongst others, in respect of which the Chief Justice or in his absence, the Deputy Chief Justice presides at the meetings of the Judicial Services Commission.


Section 190 (1) of the Constitution expressly states that:- “…the Government must pay due regard to any such advice” from the JSC. One will ask: who is the government, and who heads it? The simple answer is: the very same person(s) who appoint the JSC! To the ordinary man on the street, this does not show a separation of powers at face value, and this perception ought to be addressed.


Section 186 of the Constitution (Tenure of Judges)

The Constitution of 2013 stated that all Judges must retire at midnight on their 70th birthday. Whilst Constitution Amendment No. 1 did not tamper with this section, Constitution Amendment No. 2 repealed the entire section, and substituted it with a new one, which import is to the effect that the Judges of the Constitutional Court are permitted to continue in office for a further period of up to five (5) years, at the Judge’s election, and subject to the approval of the President on an annual basis from the year that they turn 70, after consultation with the JSC. That again poses a question on the true separation of powers, and the objectivity of the judicial system as a whole.


Section 328 (7) of the Constitution is notable in the interpretation of the foregoing provisions relating to the extension or otherwise of the Judges’ tenure. One school of thought takes the view that this section curtails the extension of the Judges’ tenure, whereas another opines that the interpretation of the section does not extend beyond the section itself, and as such, does not curtail the extension of the Judges’ tenure. A clear understanding of this section is one which ought to be achieved, as clarity on how it can be reconciled with the extension of the tenure of Judges in Constitution Amendment No. 2 is required. We identify with the former interpretation, and opine that this section does not.


Implications of Constitution Amendment No. 2 on Judicial Independence and the Separation of Powers

In view of the foregoing, we are of the considered view that the following consequences are evident from the amendment of the Constitution:-

1. Reverts to the situation as it stood prior to the 2013 Constitution;

2. President has widened powers to appoint and retain in office the top 3 Judicial officers, thereby giving the perception that he may be in control of the judiciary – which is contrary to the old adage that “Justice must not only be done, but be seen to be done”

3. There is very little separation of powers between the executive, and the judiciary – even the aspect of checks and balances between the two (2) arms of the state are seemingly compromised; and

4. The consequences may lead to a non-independent judiciary, which in turn erodes the principle of the rule of law, and human rights in the country. An independent judiciary is key to the rule of law being upheld, together with the preservation of human rights.


Therefore, it might be in another four (4) years that the Constitution will again be amended, to reconsider the regressive implications of Constitution Amendment No. 2 on Judicial Independence and the Separation of Powers – unless this is challenged by the people of Zimbabwe through the law.



*This article was published in the Law Society of Zimbabwe “Zim Juris Magazine” Issue 1 of 2022