Public Interviews Expose Mediocrity on the Bench

via Public Interviews Expose Mediocrity on the Bench | newzimbabweconstitution 16 July 2014 by Alex T Magaisa

Yesterday, I posted a blog on the new judicial interview process in Zimbabwe. On the same day, the Judicial Service Commission interviewed candidates to fill vacancies at the Supreme Court. All candidates were either judges of the High Court or the Labour Court seeking elevation to the Supreme Court.

From the running commentaries of colleagues who witnessed the event and the press that has reported on it, it looks like it was a spectacle that did a lot to expose the quality of the bench. A few candidates received good reviews but a lot seem to have been exposed for their lack of depth. I remember making a remark after reading some of the commentary that it looked like the greatest threat to the judiciary was not a lack of independence but the questionable competency of the judges.

The most glaring example of the competency gap is that one prospective candidate was apparently asked to differentiate between an “application” and an “action” – both of which are procedures by which legal matters are brought before a court. The difference may not be obvious to an ordinary person but it is an elementary one to law students let alone to a fully-fledged lawyer and judicial officer. For a judge not to know the difference is criminal. And yet this prospective candidate, who is already a judge, actually aspires to become a Supreme Court judge. You have to ask the question, how did she ever become a judge in the first place?

Asked further questions of an elementary character, she apparently promised that she would learn. Learning on the job is not a problem. Most young people starting out in their careers learn on the job. But not for an appellate judge. You do not go to the second highest court in the land to learn the difference between an application and an action. One of the critical elements of a judge is that litigants and lawyers must have confidence in you as a competent judicial officer. If they doubt your competency, you will struggle to earn their respect and confidence. Some of the judges seem to have exposed themselves in these interviews.

On this issue of competence, I am reminded of an instance where a lawyer appeared before a judge and asked for the postponement of a matter that was supposed to start on that day. The lawyer on the opposite side opposed the application and argued that the court should proceed with the matter. The judge then reserved judgment on the application for a postponement. He wasn’t a corrupt judge. He was just oblivious of the fact that by reserving judgment, he was, in effect, postponing the matter as requested by the first lawyer. Lawyers speak of this judge in hushed tones.

All this reminds me that during the constitution-making exercise one suggestion was that all judges must be made to re-apply the same way that the Kenyans took after the adoption of their new Constitution a year before us. This suggestion was resisted by some of our counterparts. The judges themselves were equally uncomfortable with this route and these interviews have exposed why. One can imagine there would have been a lot more embarrassment for most judges had they all been re-interviewed. Clearly, there seems to be a lot of mediocrity on the bench. I have heard of some judges who are notorious for inordinate delays in handing out judgments or dealing with reviews of cases from the Magistrates’ Court. But they are at the Supreme Court already. Lawyers in practice know them but they won’t say for obvious reasons.

One result of yesterday’s rigorous process will be that in future candidates will be better prepared and if they do not feel competent enough, they will not accept nomination which would only result in utter humiliation. It is a shame we won’t know which of the nominees were nominated by the President and those nominated by the public. Like I said yesterday, it would be good to be reassured that in the end public nominees get equal opportunities as much as the Presidential nominees. We can only know that if we know the Presidential nominees and judge their level of performance against that of the public nominees.

But it is worth noting that the same judge who could not explain the elementary distinction between an action and an application was herself appointed by the President. Which begs the question: how many more are there on the bench who are in her class?

The public interviews also help to expunge one notorious myth: that judges are people who are extremely clever and knowledgeable about the law. They are not. They have the power that the law confers upon them but that doesn’t make them the best exponents of the law. The fail sometimes and their decisions must therefore be critiqued and when they have gone wrong, they must be corrected. Besides, they are also human and they falter just like you and I.

I was keen on a public interview process for judges and I am pleased we have seen it in practice. It should apply to all senior public officers.

waMagaisa