Source: Public interviews expose Zimbabwe judges | The Financial Gazette November 3, 2016
IT is often said dreaming is a human right generously granted to man at the beginning of time.
It was therefore within Bulawayo lawyer, Japhet Ndebele’s right to see a judge’s face every time he looked into a mirror.
But because of the opaque manner in which appointments to the bench were done before, for a very long time he always saw himself as a quintessential judge who was sadly going to waste.
However, with the new Constitution that opens the selection of candidates for the bench to everyone meeting the minimum qualification of seven years after leaving a law school through a public process, Ndebele could feel that the finger of destiny was pointing at him and he dutifully responded by getting himself nominated for appointment to one of the eight positions available on the High Court bench.
Ndebele together with 50 others were duly shortlisted for the public interviews that were to take place over five days at a Harare hotel.
Just before the public interviews, the Judicial Services Commission (JSC) — through a reputable employment agency — decided to be sure that the candidates possessed one skill that is a sine qua non for any judge worth his/her salt… judgment writing.
At this stage, eight of the applicants disappeared.
Of the 43 candidates that sat for the test, only 14 passed by a mark of five and above, out of a total mark of 10.
A pathetic score of two out of 10 earned Ndebele position 39 out of 43, making him one of the 29 candidates that failed the prerequisite judgment-writing test.
Of these, 22 had enough horse sense to either announce that they were throwing in the towel or simply vanished into thin air, thereby saving themselves from further embarrassment.
However, Ndebele was among the seven candidates that failed the pre-interview test but felt compelled to put their case before the JSC panel headed by Chief Justice Godfrey Chidyausiku that interviewed the remaining 21 candidates for the eight available posts.
Ndebele had reason to strongly believe that despite his poor performance in the test, there were some compelling reasons for him to be given an opportunity to sit on the bench.
One of these reasons is his age.
“I think my age makes me suitable to be a judge,” Ndebele told the panel to laughter from those following the proceedings from the public gallery.
After being an articled clerk at a Bulawayo law firm from 1979, Ndebele was admitted as a lawyer in August 1981.
He then practiced for just over a year — in the process appearing before the High Court just once to handle a murder case on a pro deo basis before vanishing into the corporate world from 1982 until he turned up for the interviews 34 years later.
The public was kept entertained as Ndebele passionately tried to convince the panel that despite his litigation experience being next to nothing, he however still had some legal experience that qualified him for the High Court bench.
He stridently argued that over the years he has drafted letters to his employer’s debtors, he has handled disciplinary related labour cases, he has handled pension matters among other things… all this taken together with his age would make him a good judge — his lack of court experience and judgment writing skills not withstanding — provided he can be given six months to remove the rust that has accumulated on him over the past three-plus decades outside of the mainstream legal profession.
With each question that he responded to, Ndebele became more and more vulnerable like a shell-less snail.
This prompted the panel to ask him whether being a judge was something he had always aspired to be and if so, why he had virtually abandoned the profession almost immediately after joining it… or if it was something that he only thought of after seeing an JSC advertisement.
Ndebele was not alone.
There were six others who failed the test and still insisted on defending themselves.
These included a (former) member of the ZANU-PF provincial executive in Masvingo, who struggled to disentangle himself from the ruling party in addition to the difficulty of trying to make his very thin experience in handling cases at High Court level look respectable.
It appeared the gender equity clause in the Constitution prompted some female legal practitioners and activists to dust up their curriculum vitaes to try their luck on the bench.
Among these were two who became so outstanding in embarrassing themselves.
Sheila Mahere Nyagumbo, the daughter of the late senior Cabinet minister, Maurice Nyagumbo, appeared so sincerely unable to understand what was bizarre about her coming from being a full time farmer straight to seeking appointment to the High Court bench when she last set foot in a court as a lawyer more than 25 years ago.
She insisted that her experience in various spheres of life put her in very good stead to be a good judge.
It was so difficult for the panel to convince her that her seven years as a magistrate plus her time at the Legal Resources Foundation as well as at Msasa Project in addition to being a beneficiary of President Robert Mugabe’s generosity, which saw her being hand-picked to be a non-constituency senator between 2005 and 2008 — over and above her farming activities, could not be substitute for experience in the courts.
Also hard to convince that she was not a suitable candidate for the bench was Noria Mashumba, a former prosecutor, who started off by disowning her two out of 10 mark in the pre-interview test (position 41 out of 43) as not reflective of her capabilities and went on to belt out a whole catalogue of things she said she had done since she ended her eight year prosecuting career, 17 years ago.
The more she found it harder to convince the panel, the higher she increased her voice and at the end she was literally shouting at the interviewing panel.
Another woman, Dumisani Mashingaidze, whose background is largely in the human rights sector and was in June this year appointed the company secretary to the newly established Zimbabwe Consolidated Diamond Company, while insisting that she had working knowledge of the law and judicial processes, could, however, not tell the panel basics such as the difference between a court application and a court action.
There are two forms of legal proceedings in civil court system: Applications (also known as “motion proceedings”) and actions (also known as “trials”).
Applications are used where there is no material factual dispute between the parties and the only real issues to be decided are points of law, while actions are used to test and try factual disputes against the law.
Among those that appeared to have impressed the panel despite not having performed well in the judgment-writing test was Austine Sibanda, a former senior magistrate in Botswana, where he would handle as many as 300 cases per year.
So bold was Sibanda — who was appearing before the panel for the second time after failing in his 2014 bid — insisted that the current bench of 32 judges was more than enough if it was made up of people with a good work ethic.
The panel, particularly Judge President, Justice George Chiweshe, appeared to take particular interest in Sibanda’s case management system, which he said is used in Botswana, a system that he said would easily expose under-performers as cases are dropped into the judges’ in-trays as they came in such a way that at the end of the year all of them would have received about the same number of cases.
He also found it strange that the local system allowed judges to reserve judgment sine dire (indefinite) resulting in some cases going for more than a decade without being concluded and no one being able to ask the particular judge about it.
Last year, the out-going Chief Justice Chidyausiku had to read the riot act on lazy judges as well as naming and shaming them in order to get them to perform their duties.
Some of the judges are into farming and other businesses almost on a full-time basis, leaving the bench work for their spare time, if ever there is any, hence an output of as little as two judgments the whole year.
Veteran lawyer, Beatrice Mtetwa, who followed the proceedings from the public gallery, felt that while the new system was commendable, a lot still needed to be done to refine the process to make it truly transparent and foolproof.
“On the surface of it, the process is transparent, but what happens after the public interviews no one knows… suppose at the end of the process Ndebele (the candidate that became the laughing stock during interview referred to above) is appointed what do we do?” she quipped.
Mtetwa said their other weakness of the process was on the composition of the panel, which is made up almost entirely of people from the legal profession.
She said lawyers were not the only people concerned with the quality of the judicial processes in the country, therefore it would have been ideal if the panel included representatives of civic society, political parties, churches among other interested parties.
“The ‘Malemas’ should be given a chance to interview the candidates as well,” she said.
South Africa’s Julius Malema, leader of the opposition Economic Freedom Fighters party, was part of the committee that interviewed candidates vying to replace Thuli Madonsela as Public Protector.
Another senior lawyer, Davidson Kanokanga, said it was worrying that it looked like there was something about the Zimbabwean bench that some celebrated lawyers in the country would not want to be associated with, hence their conspicuous absence from the list of those that are eyeing judicial appointments.
“There are a number of very experienced lawyers in the country, but most of them are not showing any interest. Maybe it is a question of what they are already getting where they are,” Kanokanga said.
The new system was introduced by the new Constitution, which came into effect in 2013, as a way of ensuring that the country could have a truly independent judiciary.
Politicians are known to make spirited efforts to clandestinely control the Judiciary arm of the State by placing their proxies in strategic positions where they can act as gatekeepers to protect and promote the interests of the Executive thereby perverting justice.
“The Kenyan judiciary is not, however, currently served by Kenya’s most able legal minds. The judicial appointments process is dominated by the Executive Branch and draws its candidates largely from a pool of magistrates who are judicial officers of lower courts. Few private lawyers are appointed as judges,” reads an excerpt from the book Justice Enjoined: The State of the Judiciary in Kenya, which contains the findings of a team of international lawyers that visited Kenya in the last days of president Daniel Arap Moi and his Kenya African National Union, highlighting how the judiciary in that country had been captured for use by the embattled regime to lend a veneer of legitimacy to some of the less nuanced methods used to perpetuate its stay in power.
“In addition, there has been political interference in some cases; and the Kenyan government has taken no steps to alter the appearance of interference by the Executive Branch in others. The courts have largely refused to review allegations of torture or other mistreatment. In the face of judicial inaction, blatantly political prosecutions for treason have proceeded without various examination of the constitutional values at risk,” the book added.
Now that part of the selection process is being done under the scrutiny of the public, this reduces cases of some blatantly unqualified and or inexperienced, but politically-connected people ending up being plonked on the bench as is the case with some of the judges that Chidyausiku has had to regularly heckle in order to get some work done.
Under the new system, the JSC would forward the names of the top candidates to the President who would be expected to make appointment from that list, without any provision to bring in any outsider.
From the public selection process, it was clearly noticeable who regarded the bench as the Mount Everest of the legal profession, the satisfaction of reaching its top, which can never be measured in monetary or material terms; and those who see it as a sort of retirement home where they can have their upkeep taken care of while giving nothing in return.
Zimbabwe should cast the recruitment net wider. The Tanzanian Judges that filled the posts after independence were outstanding.