: The Law in Zimbabwe
By Otto Saki and Tatenda Chiware
Otto Saki is a Projects lawyer responsible for Human Rights defenders and International litigation projects with Zimbabwe Lawyers for Human Rights. He holds a Bachelor of Laws (Hons) from the University of Zimbabwe. He has been a fellow with the Institute for Human Rights and Development in Africa (Gambia) He has also won the international Reebok Human Rights Award on the 6th of June 2006.
Tatenda Chiware is a law student at the University of Zimbabwe. Currently he is a student intern with Zimbabwe Lawyers for Human Rights. He has held the positions of Secretary for Legal and Academic affairs at the University of Zimbabwe and is a Commissioner with the Catholic Commission for Peace and Justice.
Published February 2007
Table of Contents
Precedent / Case law / Court Decisions
The Justice System in Zimbabwe
The Constitution and the Judiciary
Appointment of judges - the Judicial Service Commission
Judicial tenure and remuneration
The System for the Administration of the Courts
The Office of the Attorney-General and Public Prosecutor
Remuneration of Judicial Officers
Shortage of Manpower and Ill-qualified Personnel
Upgrading of Inadequate Resources
Advantages of Specialist Courts
Disadvantages of Specialist Courts
The Labour Relations Tribunal Labour Court Act No. 17 of 2004
Administrative court as the water court
Special Court For Income Tax Appeals
The Electoral Court and The Electoral Commission
Legal Aid by Private Institutions
International Law and Its Application in Zimbabwe
Zimbabwe Human Rights Bulletin
Zimbabwe Lawyers for Human Rights
Zimbabwe has a hybrid, or plural, legal system in the sense that the law currently in force was adopted from foreign jurisdictions and imposed into the country by settlers during the colonial era. Zimbabwe's law after several years of independence still exposes residual traits of the process of transplantation of historical disempowerment ands colonial takeover.
Zimbabwe's Legal system consists of the Common law (non statutory or unwritten Anglo Roman Dutch Law) Legislation Case Law (Precedent) and Customary Law. With the exception of Criminal Law, which has recently been reformed and codified[1], Zimbabwe's law is not codified. The Constitution of Zimbabwe is the Supreme Law of the country and it is the parent act of any other Legislation[2].
The colonial and legal history of Zimbabwe, although unique and independent, is interconnected and interrelated to the history of South Africa's legal developments and colonial developments.
Prior to the arrival of the first British settlers in 1890, the area now known as Zimbabwe was occupied exclusively by the Shona and Ndebele peoples whose chiefs exercised Sovereign powers over them. The Shona people occupied the northern part of the country known as Mashonaland, while the Ndebele people occupied the southern part known as Matebeleland. Lobengula, a Ndebele chief, was the most powerful chief at the time of British occupation. The law in force before British occupation was the traditional or customary law of the tribes living in Zimbabwe at that time. The traditional laws were written and were not uniform throughout the country. Chiefs and their kraal heads administered the law with the chiefs being the judges who had the final say in the settlement of disputes. Chiefs have the power to issue royal decrees and these would become law. Traditional laws were enforced by the king or chiefs warriors, or indunas.
29 October 1889 marked the commencement of formal colonial takeover for Zimbabwe. A company known as the British South Africa Company (BSAC) was given a Charter on 29 October 1889 by the British government. The company was the brainchild of Cecil John Rhodes, a British businessman and politician. The colony of Zimbabwe was renamed Rhodesia, after Cecil Rhodes. The charter was a semi-permanent instrument of government until such time as nay settlers could take over the administration of the colony. According to the charter, the British South Africa Company was to administer the colony for at least twenty-five years before the contract was tampered with.
In itself the charter was the first legal document which outlined how Rhodesia was to be governed and administered. It also defined legislative and judicial issues. Article 10 of the Charter decreed thus:
".the company shall to the best of its ability preserve peace and order in such manners as it shall consider necessary and may with that object make ordinances to be approved by [the British] Secretary of State, mat establish and maintain a force of Police".
It is thus patently clear from the provisions of Article 10, that the company had now been vested with legislative, administrative and judicial powers and this was the beginning of formal law and its imposition upon a sovereign African Natives.
On the 12th of September 1890, acting on the strength of the Charter, a group of British Settlers arrived at what is now Harare in Mashonaland and hoisted the Union Jack (British flag), a sign of effective occupation. The place was then named Fort Salisbury. A town was created and a Police Force set up. The occupation was secured through dishonest and fraudulent means, given that the black natives were oppressed to British occupation of their territory. On 9 May 1891, the British government brought into being the "South Africa British Protectorate. The idea was to secure the territory from occupation by the South African Republic. However, the company remained in control of the territory.
Given the deceitful and fraudulent means of securing the territory used by Rhodes and his company, tension began to mount between Lobengula and the company. A war broke out in 1893 in which the natives, poorly armed, were defeated. This war was to be known as the "Anglo-Matebeleland war of dispossession".
In 1894, a High court was set up, from which appeals would proceed to the Cape Supreme Court. It is thus common knowledge that the laws administered in the colony of Rhodesia were of foreign origin - mainly British (English Law) and Roman - Dutch Law.
A landmark occurrence took place in on 20 October 1898. The South Rhodesia Order in Council was enacted. It provided for the appointment of an Administrator and a Legislative Council. The Legislative Council had the power to enact laws for the "peace" order and good government of Southern Rhodesia vested in the British Crown and not in the Company. All cases tried in the courts then bore the name of the Gown or the Rex. In October 1923, Southern Rhodesia was formally transformed into a British Colony by the Southern Rhodesia (Annexation) Order in Council of 30 July 1923. This influenced the law to be administered in that it led to the adoption of English legal principles in certain instances.
A Constitution then came into being in 1923. The Constitution established a legislative assembly consisting of thirty elected representatives of electoral districts. It also provided for the election of a Speaker and a Deputy speaker of the Assembly. Such a development marked the commencement of formal parliament a model which Zimbabwe still follows today. The 1923 Constitution was later revised in 1961; the 1961 constitution conferred more powers of self government on the territory of Southern Rhodesia, because the territory was still a British Protectorate. It also took into account the views of the African nationalists who sought to advance the political rights and interests of Africans.
On the 11th of November 1965, Ian Smith declared a Unilateral Declaration of Independence (UDI), which sought to free the territory from the direct British control and dominion and establish a system of total self-governance. The Queen dismissed Ian Smith and his Ministers for insubordination and declared the declaration illegal, and urged all citizens, the Judiciary, the armed services the police and the public service to carry on with their normal tasks.
In 1969 a new Republican Constitution was adopted. It introduced a Non-Executive Presidency, a bicameral legislature, consisting of a house of Assembly and a Senate. The Senate was the upper house, constituting of twenty-three Senators - ten were Europeans, a further ten were African Chiefs and the final three were persons appointed by the President. The Senate was abolished later in independent Zimbabwe in 1987 and later recently re-introduced in September 2005. This serves to highlight how the law in Zimbabwe has been etched and shaped by the country's Colonial history.
The House of Assembly of 1969 consisted of sixty-six members. Fifty were Europeans, the other sixteen were Africans. This reservation of seats for Europeans who were the minority was to say the least oppressive and it gave rise to the Revolutionary war for independence.
As a result of the continued Political impasse, numerous efforts were made to solve the political crisis. Africans continued waging a war in demand for majority rule and total independence. In 1978 the Regime partially relented and entered talks with African national parties. A new Constitution was agreed on (the 1979 Constitution Elections were held and the U.A.N.C[4] won - Bishop Abel Muzorewa became Prime Minister). Southern Rhodesia for that brief period came to be known as Zimbabwe Rhodesia. Political turmoil continued embattled and this gave rise to the Lancaster House Constitutional Conference[5] in 1979, which sought majority rule for Africans and a total grant of Independence to Africans. Soon after the Constitutional Conference, an election was held in 1980 in which Robert Mugabe's ZANU PF won. On 18 April 1980 Prince Charles formally conferred independence upon Zimbabwe; the new constitution then came into effect on the same day.
The Lancaster House Constitution of 1979 is still the Supreme Law of Zimbabwe today, twenty six years after independence, itself being the parent Act to numerous colonial era Legislation. It is thus clear that Zimbabwe's laws are the pre-historic remnants of the colonial era.
With the exception of Criminal Law[6], Zimbabwe's law is mainly uncodified. There is no one single source of law in Zimbabwe, the law is derived from various sources and has various sources and has various origins. The Criminal Law of Zimbabwe was recently codified and the Criminal Law [Codification and Reform] Act came into effect on the 1st of July 2006. Even though the criminal law has recently been codified it is still scattered and can be found in other statutes apart from the code. As it is, the code is still an experiment and its constitutionality is yet to be tested.
The following are sources of Zimbabwean law:
Legislation refers to the law validly enacted by the legislative authority of Zimbabwe and assented to by the President of Zimbabwe. In Zimbabwe the legislative authority of Zimbabwe vests in the President and parliament of Zimbabwe which is the Primary Legislation states as follows:
32 Legislative Authority
1. The Legislative authority of Zimbabwe shall vest in the Legislative which shall consist of the President and Parliament.
2. The provisions of subsection (1) shall not be construed as preventing the legislature from conferring legislative functions on any person or authority.
The Legislature of Zimbabwe can confer powers on any authority to create binding laws. Currently the Legislature of Zimbabwe is a bicameral system consisting of a Lower House (Parliament) and an upper House (Senate). Legislation brought through parliament has to be scrutinized by the Senate before it goes for assent to the executive President. The senate was recently ushered in through Constitutional Amendment Number 17 of 2005. It appears that currently the purpose is to slow down undesirable proposed legislation or to frustrate it if it comes from members of the opposition. At the same time it expedites legislation brought in by members of the ruling party.
The Senate had been abolished by the ruling ZANU PF party in 1987[7] on the pretext that it was expensive and that it slowed down the legislative process. Surprisingly it was reintroduced in 2005.
The method of passing legislation is entrenched in Section 511 of the Constitution. All legislation in Zimbabwe is styled Acts of Parliament or Statutes. Other authorities such as the President, acting unilaterally, and Ministries can pass legislation known as Statutory Instruments, or Subsidiary Legislation. Subsidiary or Subordinate Legislation consists of the following:
Precedent refers to past decisions of the superior courts. Precedents establish the legal position of cases tried in the courts and establish the reasoning for decisions made by the judges in each particular case. Conversely, precedents therefore guide the courts in making future decisions in similar cases brought before them. Zimbabwe relied on precedents of South African origin or those of any jurisdiction in which English law and Roman-Dutch law is applied and the precedents of Rhodesia.
The maxim Stare Decisi at non queta movere best sums up the use of case law in Zimbabwe. The maxim means to stand by old decisions and not disturb settled points. Supreme Court decisions in Zimbabwe are binding on all interior courts. High court ruling also binds the lower courts such as the Magistrates courts.
The advantage of Precedents is that they ensure informality and consistency in the application of the law and they maintain certainty and equality of the law in similar circumstances.
The customary law of Zimbabwe is generally unwritten. Customary law refers to the fixed customs and practices of the tribes of Zimbabwe which were in practice since time immemorial. The customs must be certain, reasonable and must had attained the recognition of formal law. For example the criminalization of incest, in the sexual offences Act and the Criminal Law (Codification and Reform) Act is the recognition of customary law which prohibits incest or sexual relationship with certain degrees of blood affinity.
The constitution entrenches the recognition of African Customary Law. Section 89 of the Constitution of Zimbabwe in imposing the law to be administered, sets up African customary law as part of the law to be administered[8]. Other Legislation, such as the:
· Customary Marriages Act
· Administration of Deceased Estates Act.
· Customary Law and Local Courts Act.
The acts also establish the application of Customary Law in certain respect.
The Customary Law of Zimbabwe is limited in scope in its application.[9] It has no criminal Jurisdiction whatsoever and it governs some areas of Marriage, Inheritance and Guardianship only.
Common law of Zimbabwe refers to the unwritten law or non- statutory law. Common law excludes the African customary Law. The common law of Zimbabwe is primarily the Roman-Dutch Law as applied at the Cape of Good Hope on the 10th of June 1891 as per the provisions of Section 89 of the Constitution of Zimbabwe. The Common Law was transplanted from the Cape and imposed to Zimbabwe. However, the common law at the Cape in 1891 had been heavily influenced by English Law, hence the common law of Zimbabwe must be said to be Anglo-Roman-Dutch Law.
A recent development in Zimbabwe ousts the application of Common Law. The recent Codification of Zimbabwe's Criminal Law through the Criminal Law (Codification and Reform) Act jeopardizes the application of Common Criminal law Section 3 of the Act states unequivocally that Roman-Dutch Criminal Law no longer to apply.
One cannot safely assert that authoritative text from acclaimed legal authors form part of Zimbabwe's law. However textbooks on law have persuasive authority upon which reliance can be had in making judicial decisions. The few authoritative legal authors in Zimbabwe rely on old Roman Dutch writers. They mainly write commentaries and guides to the law of Zimbabwe. Professor Geoff Feltoe has several Guides to the Laws of Zimbabwe which are widely used and referred to in litigation. His comments and assertions form persuasive grounds upon which cases can be decided.
The constitution of Zimbabwe is the Supreme law of the land and any other law which is inconsistent with it is deemed void to the extent of that inconsistence[10]. Therefore Zimbabwe has Constitutional Supremacy instead of parliamentary Supremacy.
The current constitution of Zimbabwe is the result of a settlement agreement done at Lancaster House in England in the year 1979. It sets out the State Structure, the Bill of Rights the Judiciary the Legislature and other administrative organs such as the public service commission. Currently there is an ongoing struggle being waged by Zimbabwean citizens who are agitating and pressing for a series of seventeen amendments, all of which cannot be said to be in the interest of Zimbabweans, but instead in the interest of the current ruling party.
The constitution is the parent Act of every other Legislation. Therefore all Acts of parliament subordinate to it must be intra vires the constitution or within the confines of constitutionality.
At this point, a chapter by chapter analysis of the constitution is prescribed.
Chapters I and II - The Republic and Citizenship
Chapter 1 defines the Republic of Zimbabwe and states that there shall be a public seal for the Republic which shall be kept by the President. It lastly entrenches that the Constitution is the Supreme law. Chapter II deals with Citizenship and maintains that citizenship in Zimbabwe is either by birth registration or by descent Dual Citizenship of any sort has been formally abolished in Zimbabwe.
Chapter III - The Declaration of Rights
Zimbabwe's Declaration of Rights protects the following rights:
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Section 12 |
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Section 13 |
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Section 14 |
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Section 15 |
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Section 16 |
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Section 17 |
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Section 18 |
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Section 19 |
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Section 20 |
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Section 21 |
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Section 22 |
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Section 23 |
The Preamble to the Declaration of Rights commerce as follows;
Preamble
Whereas persons in Zimbabwe are entitled, subject to the provisions of this Constitution, to the fundamental rights and freedoms of the individual specified in this Chapter, and whereas it is the duty of every person to respect and abide by the Constitution and the laws of Zimbabwe, the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations on that protection as are contained herein, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any person does not prejudice the public interest or the rights and freedoms of other persons.
The Declaration of Rights has been an essential feature of the Zimbabwean Constitution since Independence. However, the Declaration has been criticized for being too shallow in terms of the few rights it provides for. Since Independence the few rights enshrined have been amended with the purpose of protecting the state from liability arising from its regular and wanton human Rights abuses. The Declaration omits second generation rights and third generation rights. The derogation and limitations to rights are too excessive and in some instances taking away the rights totally. Zimbabwe is currently on record for its non-observance of fundamental rights with the state often using drastic measures and unorthodox means to curtail the rights of mankind[11].
Unlike other jurisdiction, Zimbabwe does not have a Human Rights Commission[12]. Hence the only redress for Human Rights abuses can only come from the Superior courts. At the time of writing of this article a Bill to amend the constitution in order to create a state-run Human Rights Commission had been tabled before parliament.
Zimbabwe has quite a substantial jurisprudence on human rights; however, the jurisprudence is except in a few exceptional cases not as desirable and developed as would be expected in a reasonable democratic society. Some of the decisions, instead of focusing on the promotion and protection of human rights, seek to shield arbitrary state actions in the guise of national interest. This is done in most cases by focusing on trivial technicalities of procedure instead of focusing on the long term human rights interests of the public. An example is the Associated Newspapers of Zimbabwe Case[13] where the dirty-hands doctrine was applied unreasonably and unjustifiably in a bid to deny A.N.Z. a newspaper publishing license.
Protection of citizens by the law is guaranteed in the constitution. Section 18 provides for the protection of the law and the right to a fair hearing within a reasonable time in both criminal proceedings and civil proceedings. This section conforms with provisions of international law. Every person who is charged with a criminal offence shall be presumed to be innocent until he has been proven or has pleaded guilty and shall be informed as soon as is reasonably practicable, in a language that he understands and in detail the nature of the offence charged and must be given adequate time for the preparation of his defense. The section also permits an accused to secure at his expense legal practitioners of his choice, and inter alia, to have access to records of court proceedings in respect of his trial.
Section 24 of the Bill Rights as enshrined in the constitution deals with enforcement of Bill of Rights. If any person alleges that the declaration of Rights has been, is being or is likely to be contravened in relation to him. In relation to a person who is detained, any other person can apply to Supreme Court on behalf of that particular detainee. Court officials of courts subordinates to the High Court can also refer allegations of contravention of the Bill of Rights to the High Court unless they feel in their opinion doing so would appear frivolous and vexatious.
The dilemma with the enforcement of protective provisions as entrenched in the Bill of Rights is the issue of locus-standi. A person will not have locus standi under subsection (1) of section 24, except in respect of detained persons unless he is able to allege that a provision of the declaration of Rights has been or is being or is likely to be contravened in respect of him. This was held to be the case in United Parties v. Minister of Justice, Legal and Parliamentary Affairs and others[14]. The facts briefly are that, united parties, a political party, had made an application challenging the constitutionality of provisions in the Electoral Act which gave constituency Registrars; the power to deny registration to certain voters. The Supreme Court held that the proviso in issue affected the rights and interests of 'claimant' and 'voters'. The political party was held not to have locus standi in judicio to challenge the Electoral Act. Such reasoning has been criticized as fallacious in that it denies the opportunity for "public interest litigation"
Chapter IV - The Executive
Chapter IV of the constitution defines the executive arm of the state. It states that there shall be a President who is Head of State, Head of Government and Commander-in-chief of the Defense Forces. The President is the first citizen. A person qualifies for president if he is a citizen of Zimbabwe by birth or by descent, has attained the age of forty years, and is ordinarily resident in Zimbabwe. The President is elected by voters registered on the common roll, and his term of office is six years. There is no limit to the President's terms of office, unlike in other jurisdictions, and for the past twenty years after independence Zimbabwe remains a one party dictatorship.
The president has immunity, while in office and shall not be liable to any civil or criminal proceedings whatsoever in any court. Proceedings for anything done or omitted to be done by the President during his tenure as President can be instituted against a person once they cease to be President.
The Chapter provides for two Vice Presidents of Zimbabwe who are appointed by the President. It provides Ministers and Deputy Ministers and a cabinet.
Chapter V - The Legislature
This Chapter states that the Legislative Authority of Zimbabwe shall be vested in the Legislature which shall consist of the President and Parliament. Parliament also has the prerogative of conferring legislative functions on any person or authority. Parliament consists of one hundred and fifty members, a number often criticized as too big for a very small state. One hundred and twenty of the members of parliament are voted by voters on the common roll for one hundred and twenty common roll constituencies.
Eight shall be Governors of Provinces appointed by the President, ten shall be chiefs and twelve shall be appointed by the President. These thirty reserved seats have been attacked as being undemocratic in that they make it nearly impossible for an opposition political party to attain a parliamentary majority required to impeach the President.
The Legislative authority of Parliament is enshrined in section 50. This states that subject to provisions of this constitution, parliament may make laws for the peace, order and good government of Zimbabwe.
The power of Parliament to make laws shall be exercised by Bills passed by Parliament and assented to by the President. The President may within twenty-one days of the presentation of a Bill, assent to or withhold his assent
Currently a constitutional battle is raging as citizens are demanding a Home Grown Constitution. The current constitution is the product of the Lancaster House Agreement of 1979. It was meant to be transitory piece of legislation which would change after the attainment of independence, peace and stability. It however had provisions which were not to be tempered with or amendment before the lapse of ten years. In particular contention is Section 16, which dealt with issues pertaining to land as private property.
The constitution as it is has been amended 17 times in a short period of 26 years. These amendments are the preserve of the ZANU Pf government which has had a majority of seats in the legislature since independence. In most cases the amendments are aimed at strengthening the grip on power by the Ruling party. Currently there is a possibility of amendment number 18 which will reconcile presidential elections and parliamentary elections so that they are done in 2010 instead of the constitutional 2008. The amendment might also bring in the controversial Zimbabwe Human Rights Commission.
The way forward is to have a constitutional referendum which is all-inclusive, a scenario where all citizens have an input into the contents of the constitution. In the year 2000 such a referendum was attempted and the people rejected the government-proposed constitution on the grounds that it was not based on a proper consultation of the people. Apart from that it had a shallow declaration of human rights and it conferred too much executive power on the president. The National Constitutional Assembly, currently led by Doctor Lovemore Madhuku[15] spearheaded the campaign against the government imposed constitution.
There is also a need to expand on the current Bill of rights in the Constitution as it excludes a host of other fundamental rights. The few rights enshrined in the Constitution are compromised and are taken away easily as they are not as entrenched as would be expected. In other words they are not sacrosanct.
The justice system in Zimbabwe comprises the following elements: the Supreme Court, the High Court, the Administrative Court, Magistrates' Courts, the system for the administration of the courts, the office of the Attorney General and associated public prosecutors, and the legal profession. The Justice System is a crucial ingredient to the smooth flow of the rule of law in Zimbabwe. It is at the apex of ensuring that Separation of Powers is observed and practiced. The judiciary provides for Checks and Balances in the exercise of power by the other two arms of state namely, the Executive and the Legislature. In recent years the Justice system has been massively compromised by lack of adequate government support in areas such as finance and protection of members of the judiciary. The disregard of human rights defenders such as lawyers has also massively jeopardized the Justice system in Zimbabwe.
The Constitution contains various provisions which are relevant generally to the judiciary in Zimbabwe and which provides, inter alia, for the separation of powers between the executive and the judiciary, the composition of the judiciary and for judiciary independence:
"79 Judiciary Authority
The judicial authority of Zimbabwe shall vest in -
a) The Supreme Court and
b) The High Court and
c) Such other court subordinate to the Supreme Court and the High Court as may be established by or under an Act of Parliament."
The provisions of subsection (1) shall not be construed as preventing an Act of Parliament from:
· Vesting adjudicating functions in a person or authority other than a court referred to in subsection (1); or
· Vesting functions other than adjudicating functions in court referred to in subsection (1) or in a member of the judiciary.
"79A Judiciary
(1) The judiciary of Zimbabwe shall consist of-
a) The Chief Justice, who shall be the head of the judiciary; and
b) The judges of the supreme Courts ; and
c) The judge President and the other judges of the High court ; and
d) Persons presiding over the courts subordinate to the Supreme Court and the High Court that are established by or under an Act of Parliament"
"79B Independence of the judiciary
In the exercise of his judicial authority, a member of the judiciary shall not be subject to the direction or control of any person or authority, except to the extent that a written law may place him under the direction or control member of the judiciary".
In common practice with various other countries, under the Constitution of Zimbabwe the process of appointing the senior judiciary is not formally the exclusive preserve of the executive or legislature. At least this is how it appears on paper, but the reality is that the executive has massive influence over the appointment of judges of superior courts. The ouster of judges is also done through unorthodox means. This highly negates the concept of judicial independence as judges are not free to make independent decisions that might provoke the government. It is believed that in Zimbabwe the appointment of judges is not as open as it appears on paper given that the Judicial Services Commission is filled with the President's appointees, sympathizers and beneficiaries, hence when consulted their opinions are easily swayed and influenced. Evidence is the appointment of relatively junior and inexperienced judges to the superior benches ahead of their more experienced and senior counterparts.
Section 90 and 91 of the Constitution make provision for a Judicial Service Commission the functions of which are "to tender such advise and do such things in relation to the judiciary as are provided for by this Constitution or by or under an Act of Parliament" and to which section 84 of the Constitution gives a role in the appointment of senior judges.
The Judicial Service Commission comprise the following members: the Chief Justice or acting Chief justice or most senior judge of the Supreme Court (section 90(1)(a) ) ; the Chairman of the Public Service Commission (section 90 (1) (b)); the Attorney -General (section 90(1) (c)) ; and not less than two or more than three other members appointed by the President (section 90 (1)(d)) of which one appointee must be person who is or has been a Supreme or High Court judge, a person who has been qualified as a legal practitioner in Zimbabwe for not less than five year or is a person possessed of such legal qualifications or experience as the President considers suitable and adequate for his appointment to the Judicial Services Commission and the remaining Presidential appointees must be chosen for their ability and experience in administration or their professional qualifications "or their suitability otherwise for appointment".
Pursuant to section 47(1) of the Constitution, the Chairman of the Public Service Commission is appointed by the President and, pursuant to section 74(2) of the Constitution, the Attorney -General is appointed by the President after consultation with the Judicial Service Commission.
Of the possible six members of the Judicial Service Commission, three are directly appointed to the Commission by the President (section 90(1)(d)), one is directly appointed by the President to an office by virtue of which he is member of the Commission (section 90(1)(b)) and two are appointed to the Commission by virtue of being holders of offices to which they are appointed by the President after consultation with the Commission (section 90 (1)9a) and (c) : the Chief Justice or his alternate and the Attorney General ). There is, therefore, no representation on the Judicial Services Commission independent of the direct or indirect influence of the executive.
Pursuant to section 84(1) of the Constitution, Supreme Court and High Court judges, including the Chief Justice, are appointed by the President after consultation with the Judicial Service Commission established under section 90 and 91.
There are no limits imposed by the Constitution on the number of Supreme Court and High court judges who may be appointed either in aggregate or at one time by the Judicial Services Commission.
There is no provision in the Constitution for the procedure by which candidates for the senior judiciary are selected for consideration by the Judiciary Service Commission. Further there are no rules or regulations for the conduct of the selection process. The process is subject, therefore, to a high degree of opacity.
Section 84(2) provides that if the appointment of the Chief justice or a judge of the Supreme Court or High Court is inconsistent with any recommendation made by the Judicial Service Commission, the President shall cause Parliament to be informed as soon as is practicable.
No provision is made for the resolution of any inconsistency between the appointment of the Chief Justice or a judge of the Supreme Court or high Court and the recommendation of the Judicial Service Commission.
Judicial tenure is dealt with in section 86 of the Constitution. Supreme Court and High Court judges may sit until they reach the age of sixty-five, unless before that age the judge elects to retire at the age of seventy. Such a selection shall be subject to the submission to and acceptance by the President, after consultation with the Judicial Service Commission, of a medical reports as to the mental and physical fitness of that judge (section 86 (1) 9a)). The office of a judge of the Supreme Court or the High Court shall not without his consent be abolished during the currency of his tenure (section 86 (3)).
Section 88 of the Constitution makes provision for judicial remuneration and allowances such that the salaries of Supreme Court and High Court Judges are fixed from time to time by Act of Parliament and are paid out of the Consolidated Revenue Fund and shall not be reduced during a Judge's period of office.
Section 87 of the Constitution provides for the circumstances in which a judge may be removed from office. Subsection (1) provides that a judge of the Supreme Court or High Court may be removed from office "only for inability to discharge the functions of his office, whether arising from infirmity of body or mind or any other cause, or for misbehavior, and shall not be so removed except in accordance with the provisions of the section". Subsections (2)-(9) set out the procedure fro the removal of a judge from office.
"87 Removal of judges from office
(1) .
(2) if the President considers that the question of the removal from office of the Chief Justice ought to be investigated, the President shall appoint a tribunal to inquire into the matter.
(3) If, in the case of a judge of the Supreme Court or the High Court other than the Chief justice, the Chief Justice advises the President that the question of the removal from office of the judge concerned ought to be investigated, the President shall appoint a tribunal to inquire into the matter.
(4) A tribunal appointed under subsection (2) or (3) shall consist of not less than three members selected by the President from the following-
a) Persons who have held office as a judge of the Supreme Court or the High Court;
b) Persons who hold or have held office as a judge of a court having unlimited jurisdiction in civil or criminal matters in a country in which the common law is Roma-Dutch or English, or English is an official language.
c) Legal practitioners of not less than seven years' standing who have been nominated under subsection (5).
