The High Court has rejected the bid by activist lawyer, Beatrice Mtetwa, to compel the Judicial Service Commission and President Mnangagwa to release results of interviews held six years ago for Supreme Court judges.
Justice Charles Hungwe, Justice Lavender Makoni, Justice Alfas Chitakunye, Justice Francis Bere, Justice Samuel Kudya, Justice Nicholas Mathonsi, Justice Joseph Mafusire and Justice Priscilla Chigumba were the High Court judges interviewed to fill four vacancies on the Supreme Court bench in 2016.
But only two, Justice Francis Bere, now fired, and Justice Lavender Makoni, were successful and sworn-in, two years later in May 2018.
In her application, Ms Mtetwa, who was being represented by Advocate Tererai Mafukidze, argued that the JSC refused to release the score sheet on the basis that it was “confidential”.
She said she wanted the results to be made public to “promote transparency”.
But Masvingo High Court judge Justice Sunsley Zisengwe threw out the application by Mtetwa taking into account the changes that have taken place since the time the application was launched.
Two key developments have since played out in the area of judicial appointments. First, there have been two amendments to the Constitution.
The first was to exclude the positions of Chief Justice, Deputy Chief Justice and Judge President of the High Court from the public interview process for their appointments.
The second amendment empowered the President to promote a sitting judge of the Supreme Court, High Court, Labour Court or Administrative Court to be a judge of next higher court on the recommendation of the JSC, thus retaining the public interview process for the first admission to the bench but not for promotions.
Justice Zisengwe agreed with the JSC that the dispute was now moot because a new procedure for the appointment of judges had been ushered in and that should the President proceed to appoint any judges outside the framework of the new section, that would amount to a violation of the Constitution
Justice Zisengwe said it would be farcical for Ms Mtetwa to insist on the appointment of two additional judges to the Supreme Court notwithstanding that such appointments would be excess to requirements as things currently stand, all in the name of satisfying a need that existed some six years ago, which need no longer exists today.
Already four of the judges who were interviewed have since been elevated to Supreme Court bench, two of them via the interview process and the other two via the new promotion system.
Ms Mtetwa’s legal counsel had unsuccessfully argued that since the JSC made its recommendations in 2016 in the wake of interviews, then all the President needed to do is to appoint two additional judges because he is already seized with the recommendations.
Justice Zisengwe, however, ruled that the argument could not be sustained because there cannot be a blending of the two processes.
“There should never be doubt as to which of the two processes (the interview process or the direct appointment) that led to a particular appointment,” he said.
In her application filed in June 2018, Mtetwa said the JSC should produce the score sheets for each candidate interviewed on September 29, 2016 for the four Supreme Court vacancies, a dated copy of the list of qualified nominees matching in number the advertised vacancies, plus all correspondence exchanged between the JSC and President Mnangagwa between September 29, 2016 and May 11, 2018.
She has also demanded that President Mnangagwa appoints from the list submitted to him by the JSC the two remaining judges in order of their ranking on the list submitted to him.
In opposing the application, the JSC, however, accused Ms Mtetwa of failing to recognise that in terms of the Administrative Justice Act, the appointment of judicial officers did not constitute an exercise of an administrative function as contemplated in her founding affidavit.