BRIANE CONSTITUTIONAL LAW - THE JUDICIARY

GREAT ZIMBABWE UNIVERSITY
FACULTY OF LAW
ASSIGNMENT COVER
NAMES : BRIANE HWACHI
YEAR: 2016
COURSE CODE : CONSTITUTIONAL LAW (202)
QUESTION : JUDICIAL INDEPENDENCE
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THE SCOPE AND MEANING OF JUDICIAL INDEPENDENCE
Judicial independence is the principle which requires that the judicial branch of government must
be independent and officers of the courts should be protected from political influence or other
pressures and that the courts must practice fidelity in the adjudication of the law. Judicial
independence is the yardstick of a functional judiciary and has been explained not only to mean
independence from the legislature or the executive but also from political organs, the public or
from themselves.1 It is universally accepted in modern day democracy discourse that a
Constitution must effectively guarantee judicial independence. Judicial impartiality is the
principle that the judiciary must apply the law without fear, favor or prejudice. Impartiality of a
tribunal is paramount to its performance of adjudicatory functions. This rule of impartiality is
entrenched in a constitutional practice of many countries. This paper commences with the
discussion of the philosophical development of the notion of judicial independence in detail, the
writer will then move on to address the question, “who watches the watchmen?” Consequently
the paper will explore the position of judicial restraint and judicial activism over the past twenty
years.
The notion of judicial independence is founded on Montesquieu’s doctrine of the separation of
powers.2 This doctrine seeks to avoid the concentration of power in a single organ of state as this
is viewed to be detrimental to the freedom of citizens.3 Montesquieu asserts that the judiciary
should be separated from the legislature and the executive to guarantee freedom. Thus, the
doctrine demands that the law-making task be vested in the legislature, the application and
interpretation of the law in the judiciary, and the overall administration of government in the
executive.4
The doctrine of separation of powers is usually attributed to Montesquieu although the canon
should be traced back to John Locke as well as Aristotle. The doctrine was formulated in the
1 E. Dumbutshena “The Rule of law in a Constitutional Democracy with Particular Reference to the Zimbabwean
Experience” 5 South Journal of Human Rights (1989) 313.
2 Woolman Bishop, Constitutional law ofSouth Africa (Volume 1) Chapter 12.
3 Brazier Constitutional Reform. (2008); 179-180.
4 Dumbutshena E "The Rule of Law in a Constitutional Democracy with Particular Reference to the Zimbabwe
Experience" 1989 SAJHR 311-321.

context of the political problems during the time of European monarchs who were taken to be
legibus absolutus (absolved by the law) and had absolute power. This was a way of limiting
absolute power and this was a reflection of distrust of governmental power and a desire to
maximise individual freedom. This was a way of curtailing governmental power which was often
oppressive.
It is interesting to note that this doctrine is founded upon the need to preserve and maintain the
liberty of the individual. The mechanism adopted aimed at dividing and distributing the power of
the government to prevent tyranny, arbitrary rule and so on. The essence of this doctrine is
therefore one of constitutionalism or limited government. It can be noted that the basic control
adopted is to vest three types of governmental power, legislative, executive and judicial in three
separate and independent institutions, the legislature, the executive and the courts, with the
personnel of each being different of each other. There shall be separation of powers, between the
legislature, executive and judiciary, with appropriate checks and balances to ensure
accountability, responsiveness and openness.5
The judiciary is an arm of the state. However, judges are required to be independence in the
discharge of their duties. This independence of the judiciary from other two arms of the state is
the cornerstone of the theory of separation of powers. If the legislature or the executive are not
happy with a certain interpretation of the law by the courts the only way out is to seek a change
to the law rather than disregard the interpretation and argue that it’s wrong. The prerogative to
interpret the law lies only with the judiciary. An Act of parliament or any other law which
contravenes the Constitution can be declared unlawful by the Supreme Court6.
The Constitutional imperative of judicial independence operates to safeguard rights to a fair trial,
but may very well go beyond the tenets of the Bill of Rights. It could be conceptualised as the
cornerstone for judicial review of legislation and executive conduct. Thus, the scope of judicial
independence has a wider reach than just the limitations that it places on the executive control.
From the foregoing discussion, two facets of judicial independence could be discerned. The first
is the institutional facet. This first is the institutional facet. This relates to the structural
5 Hosten e tal Introduction to South African Law and Legal Theory (1975), 605.
6 Madhuku L Introduction to Zimbabwean law( 2010).47

safeguards, which ensure that judicial organs are not unduly interfered with. These would
include controls, proper and transparent methods of appointing judicial officers (judges),
reasonable financial autonomy and even exclusive jurisdictional competence over all issues of
judicial nature. The second facets to individual independence of a judge what is referred to as the
“neutralizing distance between and legal dispute”7. This facet canvasses issues such as adequate
remuneration, security tenure (so that a judge cannot be arbitrarily removed from office),political
insularity, fear of reprisals on decision they make while performing their judicial functions, and
of course ,impartiality.
Features of an independent judiciary
Brazier contends that:
In general the public must feel confident in the integrity and impartiality of the judiciary: judges
must therefore be secure from undue influence and be autonomous in their own field. That
possibility implies that neither the government nor Parliament should have any role in the
appointment or removal of judges. More precisely, judicial independence may be said to require:
(a) that appointments to the judicial office, renewal of part-time appointments, and promotions
should not depend on uncontrolled ministerial patronage; (b) that judges should be free from
improper attempts by Ministers, Members of Parliament, or peers to influence the result of cases
still under adjudication; (c) that judicial salaries should not be reduced; and (d) that judges
should not be removed from office unfairly or without reason8.
Rautenbach and Malherbe furthermore note that the independence of the courts is an incidence of
the separation of powers.9 In a country founded on a Constitutional democracy, the independence
of the courts is pivotal to the protection of human rights. Constant interference with judicial
independence in Zimbabwe has consequently contributed to the infringement of human rights as
the citizens cannot rely on the courts for their protection. Hence the constitutions of a number of
countries contain provisions that protect the independence of the courts.
7 Hoeter Administrative Law in South Africa (2007); 404.
8 Brazier Constitutional Reform (2008); 172.
9 Rautenbach IM and Malherbe EFJ Constitutional Law 6th ed (LexisNexis Butterworths Durban 2013); 165.

clear statements providing for an independent judiciary.
Madhuku contends that a clear statement on judicial independence is needed in a constitution.
10Such a statement is important for two reasons. First, it allows that redress can be sought in the
courts if a law undermines the independence of the judiciary. Second, such a statement enables
the public to criticise the executive's interference with the work of the judiciary.11
Previously section 79B of the Lancaster House Constitution provided a clear statement for the
protection of the independence of the judiciary.12 Currently section 164(1) of the Constitution of
Zimbabwe expressly guarantees the independence of the judiciary and places obligations on
government to respect the independence of the judiciary and its judgments.
In Zimbabwe the constitution formally recognized the separation of powers by creating the
legislative (Chapter 5), an executive (Chapter 4) and judiciary (Chapter 8). The concept of
independence of the judiciary which is derived from the principle of separation of powers is
expressly guaranteed in Section 79 (b) where it is provided as follows, “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.”
In a constitutional democracy such as the one envisaged by the new Constitution of Zimbabwe,
an independent judiciary is essential for the task of applying and upholding the constitution. As
such an independent and impartial judicial is perhaps the most important check and balance on
executive and legislative transgression of constitutional limits and the protection of fundamental
rights and freedoms.
A judiciary that is not independent renders the checks and balances implicit in the democratic
system ineffectual. Thus the independence of the judiciary is essential for the survival and proper
functioning of all the other constitutional mechanisms for the protection of democracy such as
constitutional supremacy, separation of powers, the rule of law and fundamental human rights.
10 Madhuku L An Introduction to Zimbabwean Law (Weaver Press Harare 2010).
11 McQuoid-Mason D, O'Brien EL and Green E (eds) Human Rights for All: Education Towards a Rights
Culture (Juta Kenwyn 1993). P33.
12 Griffith JAG The Politicsof the Judiciary 3rd ed (Fontana Press London 1985).

The new Constitution of Zimbabwe essentially provides for the independence and impartiality of
the judiciary through the various sections notably sec 164 which clearly provide that the courts
are independent and subject only to the constitution and the law, which they must apply
impartially, without favour or prejudice. Section 180 outlines an elaborate, transparent process
with checks and balances to ensure that impartial judges are appointed.
APPOINTMENT OF JUDGES.
The President appoints the judges as the head of the national security and he appoints on the
advice of the Judicial Service Commission (J.S.C). The involvement of the President in the
nomination of candidates and the appointment of the successful candidate is justified on the fact
that by virtue of being an elected president, he or she brings into the process the interests of the
people on whose behalf the judiciary function is to be exercised.13 (Luke Malaba Beyond making
Constitutions: Opportunities provided by the new Zimbabwean Constitution for creating an
independent judiciary (p.12.)In the First Certification Judgment this Court held that the
appointment of judges by the executive or a combination of the executive and Parliament was
inconsistent with the requirement that the judiciary be impartial and independent. There was
accordingly no need to establish an independent body to make such appointments. It was in this
context that it was said that the establishment of such a body and its composition was a political
choice. The method of judicial selection involves the participation of the public, the executive
and the judiciary, the J.S.C is in charge of the process- in that way the appointment procedure
guarantees that the appointment is purely objective and free of improper motives. It is submitted
that public’s involvement in the nomination process marks an improvement from the Lancaster
House Constitution as it did not provide for the involvement of the public in the appointment
process. (Towards the protection of Human rights: Do the new Zimbabwean Constitutional
provision of judicial independence. Lovemore Chidhuza).
The President must appoint candidates of the highest integrity and judicial quality, looking
particularly for the good judgment, which was once described by Lord Delvin as the first quality
13Malaba Beyond making Constitutions:Opportunities provided by the new Zimbabwean Constitution for creating
an independent judiciary (p.12.)

of a good judge.(Lord of Chancellors Department. A New Way of Appointing Judges 2003
CP10/03 para 28) the fundamental principle in appointing judges is, and must remain selection
on merit. Judges should be appointed and promoted on the basis of their legal skill, professional
qualifications and integrity; selection based on merit and is one of the key ways of preserving
judicial independence. Madhuku (2002) avers that, political factors should not be placed before
merit in the choice of judges.
An independent body is entrusted with the selection of judicial officers that is, the Judicial
Services Commission. Section 180 of the Constitution deals with the appointment of judges - has
guidelines which need to be followed in order to ensure fairness and impartiality. The Chief
justice, the deputy and the judge president of the high court and any other judges are appointed
by the president in accordance with this section.
REMOVAL OF JUDGES
Section 187 of the Constitution stipulates that, a judge may be removed from office only for
inability to perform the functions of his or her office, due to mental or physical incapacity, gross
incompetence, and gross misconduct. A judge cannot be removed from office except in
accordance to this section. If it is the removal of the Chief Justice, the President must appoint a
tribunal to inquire into the matter. Judges must not be removed from office unfairly and without
reason. The constitution gives the President too much power and this is inconsistent with the
principle of separation of powers. Also, it can be noted that misbehavior is not defined in our
Constitution but it can be taken to mean misbehavior in matters concerning the office of a judge
and would include a conviction for an offence that would render the person unfit to carry out
judicial functions. The judge may be removed from office merely on political grounds, if a judge
rules against the ruling party or condemns the activities of the ruling party he can be dismissed as
the President has the power to do so for example the issue of the land reform program.
Misconduct is the conduct on the part of a judge that is prohibited and which could lead to a
form of discipline. A judge's conduct must be free from impropriety and the appearance of
impropriety and that both his official and personal behavior be in accordance with the highest
standard society can expect. The standard of conduct is higher than expected of lay people and
also higher than that expected of attorneys. The ultimate standard must be conduct which

constantly reaffirms fitness for the high responsibilities of judicial office, and judges must so
comport themselves as to dignify the administration of justice and deserve the confidence and
respect of the public. (legal dictionary)the accused that is a high court judge Justice Paradza is
guilty of the crimes of contravening section 4(a) of the prevention of corruption act [chapter
9:16] as read with section 360 (2) (b) of the criminal procedure and evidence act [chapter 9:07] –
he unlawfully and corruptly incited Justice Maphios Cheda to do an act that was contrary to or
inconsistent with his duties as a public officer for the purpose of showing favour or disfavor to
another person, that is to say, the accused incited Justice Maphios Cheda to corruptly release the
passport of Russell Wayne Labuschagne, who was facing murder allegations and whose passport
was being held by the Registrar of the High Court Bulawayo as part of Labuschagne’s bail
conditions and that the course of justice would be defeated or obstructed if his passport was
released to him the accused unlawfully and with intent to defeat or obstruct the course of justice,
incited Justice Maphios Cheda to exercise favour towards Labuschagne by releasing his passport
in order to enable him to travel abroad to source customers for a hunting business in which the
accused had an interest.
REMUNERATION OF JUDGES
Brazier postulates that, “In order to maintain the independence of the judiciary, it is vital that the
salary that is payable to a judge is not reduced during his or her tenure of office. Such salaries
payable to judges must be charged on the Consolidated Revenue Fund so that Parliament cannot
seek to exert influence on judges via the annual discussion of the state budget.”14 Section 188 (1)
of the Constitution of Zimbabwe states that, Judges are entitled to the salaries, allowances and
other benefits fixed from time to time by the Judicial Service Commission with the approval of
the President given after consultation with the Minister responsible for justice and on the
recommendation of the Minister responsible for finance.
This implies that the President is not bound by the advice of the Minister responsible for justice.
He is however bound by the recommendations of the Minister responsible for finance with
regards to the setting of salaries and allowances for judges. Hoexter and Olivier aver that critical
to judicial independence is the protection of the judiciary against economic manipulation. In
14 Brazier, Constitutional Reform; (2008); 172.

order to accomplish this, the judiciary should thus be treated as a co-equal to the executive and
the legislature and should not be dependent on the executive for its funding.15 This is done to
ensure that the judicial officer is free from fear of financial loss. Hence the need for the President
to consult with the Minister responsible for justice and to be recommended by the Minister
responsible for finance before approving judicial salaries, since the latter is the one well-
acquainted with the economic status of the country.
It should be noted that the inclusion of the President in the funding of the judiciary is to ensure
some checks and balances over the functioning of the judiciary since judicial independence is
linked to the doctrine of separation of powers which is not absolute but allows for some degree
of overlap between the three branches of the government.16 The learned authors’ further buttress
this point by pointing out that, judicial independence links with financial security in that
adequate remuneration for judges ought to be ensured. Also, the involvement of the President
serves as a way of reconciling judicial independence and the majority rule. This is done in order
to promote transparency in the judiciary’s day-to-day functions and operations such that judges
do not have any other considerations of enriching themselves whilst still holding office. Thus if
the pay is poor, the judges and their staff may be relatively easy to corrupt. Implying that, the
judges may be vulnerable to financial inducements offered by wealthy litigants and their lawyers
thereby undermining public confidence in the judiciary, which will in turn weaken its
independence.
It is interesting to note that it is odd for the Constitution to give the Judicial Service Commission
a role in fixing the salaries and allowances of judges from time to time, since this Commission
may be unaware of the financial status of the economy of the country. However, in South Africa,
the President is given the power to set the remuneration of judges. In doing so, the President is
guided under the Judges Remuneration and Conditions of Employment Act by an independent
commission established under the Independent Commission for the Remuneration of Public
Bearers Act. Thus the President is placed with a great deal of power and responsibility, a factor
which does not bode well with the independence of the judiciary. Therefore this indicates that
theoretically, our position is much better than the one adopted in South Africa.
15 Cora Hoexter and Morne Olivier, The Judiciary in South Africa (2014); 114.
16 See note 2 above.

THE TENURE OF JUDGES
The security of tenure of judges is also key to securing the independence of the judiciary because
if judges are appointed for a fixed term, there is a danger that they will be seen as attempting to
please those that appointed them.17 Madhuku also notes that the compulsory retirement age of
judges takes away from the executive the power to grant a favourable judge the privilege of
remaining in office longer than others as this would undermine the independence of the
judiciary.18 According to section 186 (1a) of the Constitution, judges of the Constitutional Court
are appointed for a non-renewable term of not more than fifteen years but they must retire earlier
if they reach the age of seventy years.19 In an effort to enhance the independence of the judiciary,
the Constitution now provides that judges of the Supreme Court and High Court hold office from
the date of their assumption of office until they reach the age of 70 years, when they must retire
as underscored in subsection (2). The Constitution has taken away powers of the President to
grant a judge the privilege of remaining in office by preventing the executive from using its
discretionary power to extent the term of the office, thereby upholding the doctrine of separation
of powers. Long term tenure in judicial office is certainly conducive to the facilitation of
independent judicial decisions.
Although the Constitution stipulates that a judge who has resigned or reached the age of 70 may
continue to sit as a judge for the purposes of dealing with any proceedings commenced before
him or her while he/she was a judge as highlighted in section 186 (4)20, it is silent on the specific
length of time for which the judge may remain in office. This silence makes abuse possible, as
no specific time is mentioned in the Constitution with regards to the period that a judge will be
allowed to sit in that regard. The position in Uganda and Ghana enables a judge to finish
proceedings that would have been commenced before the attainment of the retirement age so as
to create consistency and certainty within the judicial system. However, the salary allocated to
judges should be such that there is not even the temptation, let alone the need for a judge to have
a sideline business or to receive rewards that may raise doubt about his/her impartiality.21
17 Rautenbach-Malherbe, Constitutional Law 6th ed, (2012) page 145.
18 Madhuku L, An Introduction to Zimbabwean Law, (2010) page 78.
19 Constitution Amendment No 20.
20 Constitution of Zimbabwe Amendment No 20, Section 186 (4).

This was indicated in the case of S v Paradza where the accused, who was a High Court judge
of Zimbabwe unlawfully and corruptly incited Justice Cheda to do an act that was contrary to or
inconsistent with his duty. The latter was incited to release the passport of Russell Labuschagne
who was facing murder allegations and whose passport was being held by the Registrar of the
High Court of Bulawayo as part of Labuschagne’s bail conditions. The accused intended to
obstruct the course of justice through inciting Justice Cheda to exercise favour towards
Labuschagne by releasing his passport in order to enable him to travel abroad to source
customers for a hunting business in which the accused had an interest.22
This case underscores the notion that due to the inadequacy of the salaries of judges, there is a
tendency that they may engage in corrupt activities so as to nourish themselves during their
tenure of office thereby destroying public confidence in the judiciary. In the case of S v Van
Rooyen it was held that, the manipulation of the salaries of judicial officers is another way in
which they can be put under pressure.23 Former Chief Justice, Gubbay’s views on the judiciary
that, “Judges must earn moral authority and justify the faith Zimbabweans have placed on them
through professional and ethical conduct”,24 still hold a significant role in the current situation in
the country. Thus the salaries payable to judges should be consistent and adequate and should not
be reduced during their tenure so as to avoid a situation where judges will be accepting bribes to
enrich themselves after office. Section 25(1) of the Judicial Service Act stipulates that, “Subject
to the Constitution and this Act, the Commission may, with the approval of the Minister, make
regulations providing for the conditions of service of members of the Judicial Service.”
Subsection (2)(b) goes on to buttress this point by stipulating that, “Regulations made in terms of
subsection (1) may provide for the pension benefits payable to members of the Judicial Service
and to other persons in respect of the members' service with the Public Service or the Judicial
Service, the contributions payable in respect of such pension benefits and the circumstances in
which such pension benefits may be reduced, suspended or withdrawn.”25
22 S v Paradza (CRB 152/04) [2006] ZWHHC 7 (10 January 2006).
23 S v Van Rooyen 2002 (8) BCLR 810 (CC).
24 Former Chief Justice Anthony Gubbay’s remarks to the Bar of England and Wales in 2009.
25 Judicial Service Act [Chapter 7:18] Section (25)(1)-(2)(b).

ACCORDING TO THE CONSTITUTIONAL FRAMEWORK WE HAVE IN THE
REPUBLIC, WHO WATCHES THE WATCHMEN?
The topic on the accountability of judges has been skeptical over the years, as there has been no
binding formula to be adopted. Placing into cognizance the crux of judicial accountability, it is
imperative to introspect the concept of checks and balances as underscored by the doctrine of
separation of powers. The writer on this paper will demystify the terms on the topic before
sailing through the accountability of judges, uncovering the essence of such accountability vis-à-
vis the concept of checks and balances so as to arrive at a stance of whether there are any serious
gaps that ought to be cured.
To begin with, it is imperative to note that in the discussion of the topic on the accountability of
Judges, theories on the concept of checks and balances, the law as well as the Constitution which
are in favour of the notion ought to be appreciated. The Constitution of Zimbabwe advocates for
checks and balances amongst the three arms of Government. Rautenbach postulates that these are
limits that are imposed upon all the branches of the government by vesting in each branch the
right to amend or void those acts of another that falls within its purview.26 The principle of
checks and balances anticipates the necessary or unavoidable intrusion of one branch on the
terrain of another in recognizing both a separation of powers and appropriate checks and
balances, between the three branches of government so as to ensure accountability,
responsiveness and openness.27 While the purpose of separating functions and personnel is to
limit the power of a single individual or institution, the purpose of checks and balances is to
make the branches accountable to each other.28
Currie corroborates this view by holding that, although the power of the courts may have gained
power vis-à-vis the other branches of government, it may be argued that their influence in reality
is waning along with the power of the other branches of government. Thus the power of the
executive branch of government has increased dramatically since the doctrine of separation of
powers was first developed.29 Pieterse rightly notes that the mechanisms for holding judges
26 Rautenbach & Malherbe Constitutional Law 6TH Edition page 165.
27 Frankfurter 1996 Certification of the Constitution ofthe Republic of South Africa page 108-109
28Ex Parte Chairperson of the ConstitutionalAssembly: In re Certification of the Republic of South Africa 1996 (4)
SA (CC) para 112.
29 Currie I et al 2001 The new Constitutional and Administrative law vol1 page 94.

accountable differ from those connected with legislature and executive accountability. He
suggests that there are measures of accountability in the public nature of court proceedings, the
judicial appointment process and the doctrine of stare decisis.30
From this, one fathoms that it is inherent in the public nature of court proceedings promotes the
accountability of the Judiciary in that the Court proceedings are undertaken in public and not in
closed doors where members of the public have free and unlimited access to these proceedings
such that any person who is interested can attend without any hindrance. Stare decisis also
promotes judicial accountability in that it makes the law more predictable; judges are not allowed
to deviate from the original decisions thereby creating uniformity in the law. Madhuku postulates
that over time, the body of law founded on previous decisions became sufficiently broad in its
scope to justify the rule that all rulings had to be based on previous decisions. 31 According to
Hahlo and Kahn, this also promotes the maintenance of certainty before the law and equality
before the law where the Lower Courts are held liable for failure to follow the hierarchical nature
of courts.32
APPOINTMENT OF JUDGES
In supporting the notion, it is also imperative to introspect the position on the prevailing society
in Zimbabwe. According to Sweet and Maxwell, judges may be appointed by the executive who
initiate legislation and presumably keeps in touch with public opinion or the will of the people.33
The involvement of the President in the nomination of candidates and the appointment of the
successful candidate is justified on the fact that as elected President, he/she brings into the
process the interests of the people on whose behalf the judicial function is to be exercised. This is
unlike the appointments by the Judicial Service Commission which does not represent anyone
because the Commission is not directly appointed by the public but by the President. This is
highlighted by section 180(1) of the Constitution.34 In accordance with this section, the President
is mandated to appoint judges but is bound by the advice of the Judicial Service Commission.
Subsection (2) outlines that, “Whenever it is necessary to appoint a judge, the Judicial Service
30 Cora Hoexter & Morne Olivier The Judiciary in South Africa ( 2014) page xxvii.
31 Madhuku L Introduction to Zimbabwean law (2010). 17.
32 Hahlo and Kahn (1968) page 32.
33 Sweet & Maxwell (1978) O.Hood Phillips’Constitutional and Administrative Law page 8.
34 Section 180 (1) of the Constitution of Zimbabwe stipulates that, The Chief Justice, the Deputy Chief Justice, the
Judge President of the High Court and all otherJudges are appointed by the President.

Commission must conduct public interviews of prospective candidates.” Holding appointment
proceedings in public ensures that appointments are conducted openly and transparently without
fear, favour or prejudice and constitutes a fundamental check to the exercise of power.35The first
public interviews were held in Harare in July 2014.36Madhuku contends that, a clear statement
on judicial independence is needed in a Constitution since it allows redress to be sought in the
courts if a law undermines the independence of the judiciary. It also enables the public to
criticise the Executive’s interference with the work of the judiciary.37 Maherbe argues that, “A
mere provision of separation of powers in the Constitution of a country is not however, the alpha
and omega of the Independence of the judiciary. For true independence of the judiciary, special
provision must be made for the mode of the appointment, conditions of service and security of
tenure of judges and the discipline, including the removal from office of judicial officers.”38
The Judicial Service Commission
The Constitution creates a Judicial Service Commission in section 189 of the Constitution of
Zimbabwe. The extent to which the appointment of judges is free from political manipulation is
largely reliant on the independence of the Judicial Service Commission. Section 191 mandates
the Judicial Service Commission to conduct its business in a fair, just and transparent manner.
Thus an appointment process will be criticised if it lacks transparency and accountability. The
Judicial Service Commission makes recommendations to the President when it comes to the
appointment of judges. This is a loophole which can be prone to abuse in the sense that, since
this body is considered to a professional body, it therefore implies that it has to make
appointments instead of making recommendations. This body comprises of 6 members, 4 of
whom are directly appointed on the President. The involvement of the President in the
appointment process is to ensure some checks and balances over the judiciary and thus in a way
attempts to make the judiciary accountable.39 Section 180 (3) stipulates that, if the President
considers that none of the persons on the list submitted to him or her are suitable for appointment
to that office, he/she must require the Judicial Service Commission to submit a further list of
three qualified persons, whereupon the President must appoint one of the nominees to the office
35 Currie et al, The New Constitutional and Administrative law,(2001) page 91.
36 http://www.jsc.org.zw date accessed (19-06-2014).
37 Madhuku 2002 J Afr L 232.
39 Ville M.J.C, Constitutionalism and separation of powers 2nd ed (1998) page 13.

concerned. The word “must” found in this section places a peremptory/authoritative obligation
over the President to appoint Judges.
Since the Constitution is the grund norm of the land, its provisions ought to be embraced, thus
during the appointment of judges, the President will be acting constitutionally. This is
highlighted through the appointment of Chief Justice Chidyausiku ahead of more senior judges
and several more senior judges resigned and some went to exile.40 Thus the approach shifted in
that, judges who were resistant of the land reform process were removed from the bench and
replaced by more compliant judges. The similar approach was undertaken in South Africa when
Mogoeng was nominated for appointment as Chief Justice. His nomination was extremely
controversial since he was one of the Constitutional Court’s most junior members. He was
appointed ahead of the most expected appointee, Dikgang Mosoneke.41 Given the efforts made to
secure the independence of the judiciary, the body will act as a watchdog to conduct checks and
balances over the President and ensure that judicial appointments are made on merit without any
undue political influence.
With regards to the appointment of acting judges in the Constitutional Court42 and the Supreme
Court43, the Constitution provides that such appointments should be performed by the Chief
Justice. The Constitution is silent, however, on whether or not the Chief Justice has to consult the
Judicial Service Commission in appointing acting judges of the Constitutional Court and the
Supreme Court. It should be noted that as head of the judiciary it is appropriate that the Chief
Justice should make such appointments. However, the unilateral appointment of acting judges of
the Constitutional Court and Supreme Court by the Chief Justice is of great concern and raises
serious questions about the impartiality of such appointments. The Constitution in this instance
therefore also provides for a weak constitutional protection of the appointment of acting judges.
As a result of the existence of this loophole there is a possibility that the Chief Justice might be
tempted to make appointments recommended by the executive. Hence there is a need to review
this provision to ensure that there is impartiality in the appointment process.
40 The state of Justice in Zimbabwe: A report to the International Council of Advocates and Barristers by five
Common law Bars into the state of justice in Zimbabwe (April 2004).
41 Oxtoby, Chris (2013), “New Appointments to the Constitutional Court 2009-2012” South African Law Journal:
219-230.
42 Section 166 (2) of the Constitution of Zimbabwe Amendment No 20.

REMOVAL OF JUDGES
It must be noted that the conditions for removal of judges from office are important in securing
the independence of the judiciary. International standards have been put into place to preserve
the independence of the judiciary, which standards place emphasis on preventing the improper
removal of judges from office.44 Section 164 (1) of the Constitution of Zimbabwe stipulates that,
“The courts are independent and are subject only to this Constitution and the law, which they
must apply impartially, expeditiously and without fear, favour or prejudice.” 45 Thus it can be
noted that although judges are subject to the law only, they are not super humans and completely
immune from removal from office.46 It is crucial that a judge in the case of his or her inability to
perform judicial duties or in a case of serious misconduct must be removed from office by an
independent and impartial tribunal. However, it must be noted that there is a huge debate on what
incompetence really is, it is difficult to measure one’s incompetence.
This implies that removal of one from office is not a straightforward exercise, there ought to be
solid reasons for one to be pushed out of office. Section 187 of the Constitution of Zimbabwe
stipulates conditions under which a judge may be removed from office. These grounds are
similar to those in many countries such as Botswana, Zambia, Namibia and South Africa.47 The
mechanisms to guard against such misconduct are not strong enough and they are political in
nature. Taking for instance the Zimbabwe Anti-Corrupt Commission (found in Section 254 of
the Constitution of Zimbabwe, Amendment Number 20) is under investigation for serious
corruption thereby leading to a huge indictment on the legal process.48 This implies that, the
Constitution may provide for these mechanisms, but their effectiveness in protecting democracy
lies in their enforcement.49 In essence, the prevailing purpose of checks and balances as part of
the separation of powers doctrine is therefore to ensure that institutions do not become too self-
centred in their conduct.50 The Constitution renders some authority to the Judicial Service
44 Principle iv of the Latimer House principles on the Three Branches of Government (2003).
46 Beyond making Constitutions: Opportunities provided by the new Zimbabwean Constitution for creating an
independent Judiciary.A perspective from the Judiciary by the Honourable Deputy Chief Justice of Zimbabwe:
Luke Malaba.
47 Madhuku L, Introduction to Zimbabwean Law, (2010) 95-97.
48 http://www.sundaymail.com date accessed (01-05-2016).
49 Justice Mvedzenge & Coltart, A Constitutional Law Guide Towards Understanding Zimbabwe Fundamental
Socio-Economic & Cultural Human Rights;
50 Woolman Bishop, Constitutional Law of South Africa (Volume 1) Chapter 12.

Commission with regards to the removal of judges from office. The Judicial Service Commission
as an oversight body to ensure judges always performs their duties in a professional manner. The
procedures of removal of judges from office are lengthy and cumbersome, which ensures that
judges cannot be lightly threatened with removal.51 The involvement of the President in the
removal process is to ensure the accountability of the judges. As head of Government, the
involvement of the President also endorses the principle that the judiciary is a branch of a
Constitutional Government.52 Therefore this inclusion of the President in the removal process
also promotes the accountability of the judges because if judges operate with inadequate checks,
they may become slothful, arbitrary/venal.
PRESIDENTIAL PARDON POWERS.
Traditionally, this has been in the domain of the President and experience has shown that if
power is left in the hands of one person, that power may be prone to abuse. It is therefore
common cause that the judiciary’s power can be monitored by Presidential pardon powers. This
is enshrined in Section 112 (1)(a) of the Constitution of Zimbabwe, thus, “the President , after
consultation with the Cabinet, may exercise the power of mercy, that is to say, may grant a
pardon to any person concerned in or convicted of an offence against any law.”53The main
reason for this, is to correct those instances where there was miscarriage of justice. In this case
the President will be acting as an overseer of the judges, since the Supreme Court is the final
court of appeal the people will have nowhere else to appeal to except to wait for the President’s
pardon. This is supported by O Hood Philip and Paul Jackson who postulated that the prerogative
of mercy has been described as Constitutional safeguard against mistakes.54 What this illustrates
is that, through his power the president can be able to vindicate those who have been wrongly
charged. The power to provide mercy is provided for in section 112(1) (a) of the Constitution
where the President after consultation with the cabinet may exercise the power of mercy, that is
to say he may grant a pardon to any person concerned in or convicted of an offence against any
law. Therefore, it goes without saying that the Presidential pardon powers are there to ensure that
judges are accountable to the law and also to enhance some checks and balances over the
53 Section 112(1)(a) of the Constitution of Zimbabwe, Amendment No 20.
54 Sweet and Maxwell, O.Hood Phillips’Constitutional and Administrative law (1978); 14.

judiciary, such that they do not abuse their power. In essence, the principle of checks and
balances focuses on the desirability of ensuring that the constitutional order, as a totality,
prevents the branches of government from usurping power from one another.55 Thus Presidential
pardon powers are central in recognising both a separation of powers and appropriate checks and
balances between the three branches of government so as to ensure accountability,
responsiveness and openness.56
Legislative check over the judiciary.
If a court declares a statute invalid, in theory, parliament may amend the constitution to undo the
court’s decision. This is stipulated in Section 117 (2) (a) of the Constitution of Zimbabwe which
stipulates that, “the legislative authority confers on the Legislature the power to amend this
Constitution in accordance with section 328.”57According to Sweet and Maxwell, “It is not
strictly accurate to say that courts declare legislation void, when cases are brought before them
judicially, they may declare that an alleged right or power does not exist or that an alleged wrong
has been committed because a certain statute relied on is unconstitutional.”58 This right is used
by the legislature to guard against abuse of judicial review. Thus Currie and De Wall aver that,
parliament might use that power to limit the court’s power of judicial review and within
constitutional limit and restrict their jurisdiction.59
This was highlighted in the case of Zuva v Nyamande where the Supreme Court judgement of
July 17, 2015 saw some local authorities attempting to terminate contracts of employment of
some workers.60 Some local authorities would have terminated contracts on notice before the
Parliament remedied the mischief. A worker would have been dismissed for no apparent reason
and without any compensation. Thus Cora Hoexter and Morne Olivier postulate that, “the
principle of judicial independence ensures that the judiciary is able to carry out its role as
guardian of the Constitution without fear, favour or prejudice and inspires public confidence.”61
55 Certification of the Constitution of the Republic of South Africa, (1996) page 108-109.
56 Sam K Amoo, The Constitution at work, (1999) page 270.
57 Section 117 (2)(a) Constitution of Zimbabwe, Amendment No 20.
58 Sweet and Maxwell, O.Hood Phillips’ Constitutional and Administrative law (1978); 8-9.
59 Currie, De Wall, Constitutional and Administrative Law (2001) 117.
60 Zuva v Nyamande 2015 ZW (CC) (8).
61 Cora Hoexter & Morne Olivier, The Judiciary in South Africa (2014) page 102.

Has there been judicial independence in the past 20 years?
An independent and impartial judiciary is an institution of the greatest value in a democratic
society required by law. It is not enough that the judiciary is separated from the legislature and
the executive branches of government, they must be independent from the two branches, in the
sense that the latter should not interfere in the exercise of the law by the judiciary authority in the
administration of justice.(Montesquieu) there is no liberty if the power of judging is not separate
from legislative power and from executive powers.
Judicial independence has not been practiced in Zimbabwe for the past 20 years. The provision
(section 180)62 grants the president enormous power in the appointment process and the
provision is dangerous for the independence of the judiciary and is subject to abuse by the
President in the case where his preferred choices are not forwarded for appointment. The
selection of judges might be politicized in this case. The government may be tempted to appoint
their own supporters as judges and this then compromise the independence and integrity of the
judiciary (UNISA Guide), the government is putting political factors before merit when
appointing judges. The involvement of the JSC was intended to restrict the power of the
executive to appoint whoever it wished- however, the appointment of judges is not as open as it
appears on the paper.63 The JSC is filled with president appointees, supporters and sympathizers
and beneficiaries, hence, when consulted their opinion are easily swayed and influenced. The
decision to appoint a judge is made by a vote of a body dominated by political appointees, who
do not give reasons for their decisions.64 This is evidenced by the relatively junior and
inexperienced judges to the superior benches ahead of more experienced senior counterparts.
Chidyausiku was appointed CJ ahead of numerous other senior judges and was the first
appointment to the office, made directly from the High court bench. Judicial officers are being
appointed on the bases of political patronage. The members of the judicial will appointed on the
basis of perceived political affiliation or they have been considered to hold interest on viewpoints
that will advance government policy. Chidyausiku is a beneficiary of the illegal land acquisition
and it is not a surprise that he does not see anything wrong with the land reform program.
62Constitution of Zimbabwe.
63 Hoexter and Olivier The Judiciary in South Africa. 29.
64 Currie and Johan de Waal. The new Constitutional and Administrative law (2001).(p304 )

Appointment of acting judges has over the years raised international controversy – deemed to be
contrary to sound legal policy and the independence of the judiciary as a result of their insecure
tenure. Acting judges do not have security of tenure; therefore, they lack an important guarantee
of judicial independence.65 Security of tenure is the key to the independence of the judiciary,
thus lack of security of tenure infringes judicial independence. (The Judiciary in South Africa pg
149)Section 181 (3) of the constitution stipulates that if the services of an additional judge of the
High court, Labour court or the Administrative court are required for a limited period, the
president acting on the advice of the JSC, may appoint a former judge to act in that office for not
more than twelve months, which period may be renewed for one further period of twelve
months. If judges are appointed for a fixed term only (an acting judge may be appointed for not
more than 12 months) there is a danger that they will be seen as attempting to please individuals
that have appointed them (the president) in order to attain reappointment. The general principle
is that the longer the term of office to be served by a judicial officer fixed by law governing
judicial appointments the greater the guarantee for judicial independence.66
There is no judicial independence in Zimbabwe as evidenced by the removal of judges. The
removal of judges is important in securing independence of the judiciary. Sec 187(2) empowers
the President to initiate removal proceedings against the Chief Justice and judges. The
involvement of the President in Zimbabwe has led to the removal of judges merely on political
grounds. One of the most important ways in which judicial independence is present is by the
security of tenure of judicial office- holders of the office cannot be dismissed because they are
unpopular with the government.67 The Supreme Court under Gubbay made several progressive
pronouncements that favored the promotion and protection of human rights. The Supreme Court
bench was removed after their land mark ruling on the issue of the Land Reform Programme.
The Supreme Court ruled the form of invasion was unlawful and an affront to the constitution.
The Supreme Court ordered the executive to take necessary measures to make sure that invasions
were sanctioned.
65 Note 7 supra,at 305.
66 Deputy Chief Justice Luke Malaba. Beyond making Constitutions: Opportunities provided by the new
Zimbabwean Constitution for creating an independent judiciary. (2012) p (11)
67 Bradley and Ewing. Constitutional and administrative law , 390.

Furthermore, the executive did not accept this ruling thus the Supreme Court judges were
hounded out of office. According to former Chief Justice Anthony Gubbay, on 24 November
2000, ‘war veterans’ forcibly entered the Supreme Court building shouting ZANU-PF political
slogans and calling for judges to be killed. In December 2000 President Mugabe described
judges as guardians of ‘white racist commercial farmers’. Another government minister accused
the Supreme Court, particularly Chief Justice Gubbay, of being biased in favour of white
landowners. President Mugabe accused him of aiding and abetting racism. Justice Minister,
Patrick Chinamasa, told Justice Gubbay that the government no longer had confidence in him
and asked him to step down. Justice Gubbay resigned in March 2001, well before his term of
office had expired, and, following his resignation, ZANU-PF members of Parliament passed a
vote of no confidence in the Supreme Court, and the Minister of Justice encouraged remaining
Supreme Court judges to resign. Justice Gubbay was replaced by Godfrey Chidyausiku (a former
deputy Minister of Justice in the ZANU-PF government and a beneficiary of the government’s
land reform programme), who was appointed chief justice ahead of more senior judges. Several
more senior judges then also resigned and some went into exile. The very existence of the power
to remove a judge from office is a sufficient threat to judicial independence notwithstanding the
limited exercise of the power in practice and irrespective of whether its exercise would be an
issue in a concrete case.
Judicial independence requires that judges should be protected from political pressure to reach
decisions which suit the government or other powerful interest. The constitution might prescribe
that the judiciary are independent and only subject to the constitution but, there is no judicial
independence due to political interference. The judiciary is required and expected in terms of the
principle of judicial independence to act in accordance with the law and decide cases before
them by applying the law to the facts found proved. They are not to be subjected to any undue
pressure or improper influence from any quarter, public or private. Judicial independence and
separation of power illustrates that there has to be a separation of functions and personnel – each
branch of law must be confined to its own functions and not allowed to encroach upon the
functions of other branches.68
68 Constitutional Law in South Africa vol 1 , Chapter 12.

Section 165(5) of the Zimbabwean constitution stipulates that members of the judiciary must not
solicit or accept any gift, bequest, loan or favour that may influence their judicial conduct or give
appearance of judicial impropriety. Judges are beneficiaries from the controversial Fast Track
Land Reform Program. There is a strong and valid perception of judicial bribing in that members
of the judiciary were offered and acquired farms, which shows political control of the judiciary,
thus their impartiality in land case issues is doubted. Chief Justice Chidyausiku is a beneficiary
of the government commercial farm allocation scheme – he is a listed as the owner of 895
hectares known as estates farms in Mazoe. Most judges who were appointed to the Supreme
Court are all beneficiaries of the land reform program; the like of HON Ziyambi, HON Malaba
and this questions their impartiality when it comes to the issues of land acquisition. This was
after the removal of the Supreme Court bench under Gubbay which had declared farm invasions
were unlawful and in violation of the Constitution. They were forced to retire. The million dollar
question is what then the fate of the justice system becomes when the judges are beneficiaries of
an unjust land allocation process which was done with gross disregard for the rule of law? How
can these judges make rulings against a system that aggrandizes them – expose the corrupt
tendencies of some of the members of the Zimbabwe’s current bench.69 It clear that there is a
conflict of interest for any judge asked to rule on issues relating to the land reform programme.
In August 2008, the Government announced that it had bought and delivered luxury cars, plasma
television sets and electricity generators to all judges, using funds from the Reserve Bank of
Zimbabwe (RBZ). This contravenes section 165 of the Zimbabwean constitution which stipulates
that judges must not receive gifts this makes us to question their impartiality. A Human Rights
Watch report in November 2008 similarly observed that since 2000 President Mugabe’s
government ‘has purged the judiciary, packed the courts with ZANU-PF supporters and handed
out “gifts” of land and goods to ensure the judges’ loyalty’.
In the case of Campbell – he was a white farmer who received a notice that the state owned his
land which he had bought after the independence in 2001 the high court ruled against his
eviction. In 2004 amendment 17 of the constitution was added in 2005 and it eliminated the
69 O Sekai and T Chiware The law in Zimbabwe (2007),21.

court’s jurisdiction to hear any challenge to the land acquisition (ousted the court jurisdiction to
land reform cases). Section 16B amendment stated that person having any right or interest in the
land shall not apply to a court to challenge the acquisition of the land by the state, and no court
shall entertain any such challenge, the act ousted the jurisdiction of the local courts and the
applicants were therefore ‘unable to proceed under the domestic jurisdiction. The Supreme Court
dismissed Campbell’s challenge and held that the Zimbabwean government has an inherent right
to compulsory acquire the land. Chidyausiku said the government land reform programme was a
matter of social justice and not strictly speaking a legal issue. Campbell challenged the validity
of the amendment and filled an application to the SADC Tribunal challenging the acquisition of
land by the government. The applicants also argued that the decision as to whether or not
agricultural land was to be expropriated was determined by the race or country of origin of the
registered owner; that Amendment 17 was the ultimate legislative tool used by the respondent to
seize all white-owned farms and that land reform was directed at persons who owned land
because they were white, regardless of whether they acquired the land during or after the colonial
period. Zimbabwe treats the Tribunal’s rulings with contempt, as demonstrated by the then
Minister of Lands, Mr Didymus Mutasa’s remarks that the Tribunal had no jurisdiction over the
matter and that farmers who dared return to their farms would be prosecuted. The decision will
remain paper law, as Campbell won’t be able to use the decision made by the tribunal, if
Campbell was to go back to his farm he will be prosecuted.70
There is no judicial independence as courts are inappropriate handling of cases involving the
protection of fundamental human rights and freedoms. The independence of the judiciary
encompasses the protection of democracy such as the supremacy of the constitution and the
fundamental human rights. One principle of judicial independence is that judiciary should
enforce the law impartially, act without bias and free from external pressure.71 Cases of
Operation Murambatsvina illustrate the violation of human rights as people were subject to
unplanned eviction and destruction of property. It contravened section 119 0f the urban council
acts which requires the officials to give 28 days’ notice before eviction and must have
70 Moyo A African Human Rights Law Journal Defending human rights and the rule of law by the SADC Tribunal:
Campbell and beyond .(p2)
71 Note 4 supra,97.

resettlement places for these people. In the case of Batsirai Children’s Care v Minister of Local
Government and Urban Development & 4 Ors HC 2566/05 urgent reliefs was sought against the
continuing eviction of children, including those orphaned by HIV/AIDS, who had been living in
an orphanage run by Dominican sisters. The matter was set down before Justice Benjamin
Hlatshwayo in late May 2005. The judge has continuously postponed the matter, which has had
the effect of exposing the children to further human rights violations and ever-deteriorating
living conditions. The court ruled that the operation was legal and regretted the human suffering
but were not brave enough to seize the opportunity. Clearly the appointment of judges is exposed
to significant political interference. The external threats range from violent intimidation of
judges by militia and the government to political interference by the executive with the judicial
process and the stacking of the bench. It is thus feared that the judiciary may no longer be able to
fulfil its promise to safeguard human rights and ensure that the rule of law is upheld because its
officers are unable or unwilling, to perform their mandate with impartiality and objectivity.
(Susan Rose-Ackerman is Henry R. Luce Professor of Law and Political Science at Yale Law
School, New Haven, Connecticut, United States).
The judiciary has adopted the concept of delaying judgments- this shows their political
patronage, they are ruling according to the ruling party’s policies. The judiciary is avoiding
deciding human rights cases particularly those deemed to be politically sensitive as evidenced in
the Tsvagirayi case. The court had an urgent application where applicant sought to have his
electoral rights protected in the election which was a day away yet the court reserved judgment
until more than a month after the election passed.Tsvagirai v Mugabe in this case Tsvagirai
challenged the election of Robert Mugabe as the president of the republic of Zimbabwe. On 12
April 2002 the applicant presented to the High Court, in terms of the procedure prescribed in s
102(1) of the Electoral Act [Chapter 2:01] (“the Act”), an election petition complaining of undue
election of the first respondent to the office of President by reason of a number of alleged causes.
Amongst the grounds on which the petition was based was the allegation that s 158 of the Act
and statutory instruments enacted there under, particularly the Electoral Act (Modification)
Notice 2002, SI 41D of 2002, in terms of which the election was conducted, were
constitutionally invalid. The election petition prayed the High Court to make an order in terms of
s 102(2) (b) of the Act declaring that the President was not duly elected.However, the court

delayed and reserved judgment, the matter was heard seven months later. The courts are denying
justice through delays and courts are portrayed as politicians. Challenges and problem areas in
the Judiciary one of the key challenges faced by the judiciary over the last decade has been the
issue of its politicization, whereby some rulings appear to have been influenced by political
factors. This has particularly been so in cases involving land appropriation disputes, and the
detention and incarceration of human rights defenders.72
Justice Ngcobo observed in a seminar address to the judges symposium 2003 – the judiciary
cannot be said to be a genuinely independent and autonomous branch of government if it is
substantially dependent upon the executive branch not only for its funding but also for so many
features of its day to day functions and operations. The capacity of courts to deliver justice and
achieve the highest level of operational efficiency can best be secured by placing every aspect of
administration of the courts under the ultimate control of the judiciary. Thus, there is need for the
judiciary to be totally independent.
JUDICIAL ACTIVISM
It must from the outset be made clear that the concept of judicial activism do not lend itself to an
exact definition. It has variously been defined as a philosophy advocating that judges should
interpret the constitution to reflect contemporary conditions and values when courts do not limit
their ruling to the dispute before them, but instead establish a new rule to apply broadly to issues
not presented in a specific action.73 At the core of the concept is the notion that in deciding a case
judge may reform the law if the existing rules or principles appear defective. Thus judges should
not hesitate to go beyond their traditional role as interpreters of the Constitution and laws given
to them in order to assume a role as independent policy or independent “trustees” on behalf of
72Pretrial detention in Zimbabwe: Zimbabwe human rights lawyers (2013), 17.
73 See for example, C Wolfe, Judicial Activism: Bulwak of Freedom or Precarious Security, Lanham, Rowman &
Littlefield (1997) at pp.1-33.See LA Graglia, “Its not Constitutionalism, Its Judicial Activism” 19 Harvard Journal
of Law and Public Policy 293 (1996) at p.296 where he defines the concepts as:“By judicial activism I mean, quite
simply and specifically, the practice by judges of disallowing policy choices by other governmental officials or
institutions that the Constitution does not clearly prohibit.” See also G.Jones, “Proper Judicial Activism” 14 Regent
University Law Review 141 (2002) at p.143 where the term is defined as “At its broadest level, Judicial Activism is
any occasion where a court intervenes and strike down a piece of duly enacted legislation.”

society.74 It is a philosophy of judicial decision–making whereby judges apply their personal
views about public policy among other factors, to guide their decisions. (Black’s law
dictionary).The array of existing disparate, even contradictory ways of defining the concept has
made its meaning increasingly unclear. The writer intends therefore, to use the concept in this
presentation to mean a situation in which judges go beyond their traditional role of being
interpreters of the Constitution and seek to give effect to contemporary social conditions and
values to suit the changes in the society.
The principle of judicial activism involves the empowerment of the judiciary to take up a quasi-
legislative role. Section 176 of Constitution clearly stipulates that the Constitutional Court, the
Supreme Court and the High Court have inherent power to protect and regulate their own process
and to develop Common law or the customary law, taking into account the interests of justice
and the provisions of the Constitution. Also section 46(2) provides that when interpreting an
enactment, and when developing the common law and customary law a court, tribunal, forum or
body must promote and be guided by the spirit and objectives of this Chapter. It is interesting to
note that judicial activism manifested in a number of cases taking for instance the case of
Nyamande v Zuva.75 In this case the Supreme Court developed the common law principle that
where an employee terminates his or her contract on a three-months notice and so should the
employer.
In addition to that, in the case of Matende v Chapeyam & Another76 the appellant and the
respondent were married under customary law. The marriage was not registered under
Customary Marriages Act Chapter 5:07 and therefore was regarded as an ‘unregistered
customary law union’. They had two children and acquired considerable property through their
joint efforts. The properties include a house in Harare that was registered in both their names.
There husband terminated the marriage relationship and sought an order from the courts to have
the respondent’s name be deleted from the registration certificate pertaining to the house. The
responded opposed the order and counter claim fair distribution of matrimonial assets including a
house. The court was of the view that in general, where parties are married according to
74 See K.D. Kmiec, “The origin and current meaning of judicial Activism” 92 California Law Review 1441 (2004) at
p.1446.
75 2015 ZWCC 8.
76 1999 (1) ZLR 534.

customary law their rights and duties are governed by customary law. According to customary
law the respondent was entitled to amai and maoko property and not to a general distribution of
matrimonial property. One the face of it customary law yielded a clear injustice. The court held
that this was a proper case to resort to the justice of the case and refused to apply customary law.
Therefore one might argue that in this case judges go beyond their traditional role and seek to
give effect to the contemporary social conditions and values.
Still supporting the fact of judicial activism, in Katekwe v Muchabaiwa and another77, the
Supreme Court held that the father of an African female who had reached the age of eighteen no
longer had the right to sue for seduction damages under customary law in respect of his daughter.
On the basis of the Legal Age of Majority Act had changed the status of women even under
customary law, it was therefore argued before, and accepted by ,the Supreme Court that the
reason why women could not sue on their own under customary law was because they were
regarded as perpetual minors. The Legal Age Majority Act gave them majority status on
reaching eighteen and therefore bestowed on them rights they could not enjoy under customary
law. As a result of this, in the constitution of Zimbabwe there is the recognition of gender
equality that is section (3g).This also led to women empowerment as they are now enjoying same
rights with men even in government posts. Therefore one might argue that in this case judges go
beyond their tradition role and seek to give effect to contemporary social conditions and values.
There is a general consensus that judicial activism has served Africa’s democracy well. The
Supreme Court’s willingness to tackle controversial issues in a serious and thoughtful manner is
said to have given it prime legitimacy.78 It has also been said that the great contribution of
judicial activism in Africa has been to provide a safety valve in a democracy and a hope that
justice is not beyond reach.79 Furthermore, the courts adoption of a pro-active role to make up for
the inefficiencies of the executive has proved beneficial to Zimbabwean society. People in
general believe that if any institution or authority acts in a manner not permitted by the
Constitution, the judiciary will step into right the wrong.80 Whilst these accolades are well
77
1984 (1) ZLR 112.
78 See Sathe op.cit.at 249
79 See Davis op.cit.
80 See MN Rao, “Judicial Activism” to be found at www.geocities.com/bororissa/jud.htm?20088.

deserved it is important to bear in mind these words of Justice Rao of the High Court of Andra
Pradesh. He said:
Judicial activism should not result in rewriting of the Constitution or any
legislative enactments. Reconciliation of the permanent values embodied in the
Constitution with the transitional and changing requirements of the society must
not result in undermining the integrity of the Constitution. Any attempt leading to
such a consequence would destroy the very structure of the constitutional
institutions. Conscious of the primordial fact that the Constitution is the Supreme
document, the mechanism under which laws must be made and governance of the
country carried on, the judiciary must play its activist role .No Constitutional
value propounded by the judiciary should run counter to any explicitly stated
constitutional obligations of rights. In the name of doing justice and taking shelter
under institutional self-righteousness, the judiciary cannot act in a manner
disturbing the delicate balance between the three wings of the state.81
It is interesting to note that, South African judges felt less restraint and quite courageous
and innovative in dealing with matters dealing with human rights. The very first case that
came before the Constitutional Court, S v Makwayane82, dealt with the highly sensitive
issue of the death penalty which the apartheid regime had widely used in trying to destroy
the resistance to its inhuman system. The sensitive of the matter was not only
compounded by the fact that the NCA had long adopted an abolitionist stance on the
matter but it came at a time of rising crime rate. Both the Constituent Assembly that
negotiated the Constitution and the South African law Commission had been unable to
agree on the matter and had agreed to agree to leave it, the words of this latter, to the
“Solomonic” wisdom of the court.83 The court after reviewing the legislative history of
the drafting of the Constitution and relying primarily on the prohibition of cruel, inhuman
and degrading treatment and punishment as well as on the rights to human dignity and
equality concluded that the death penalty did not have a place in the legal system of a
81 Quansah E K Judicial Activism in Africa: Possible Defence Against Authoritarian Resurgence? P.7
82 1995 (3) SA 391 (CC).
83 See Project 58, Group and Human Rights Interim Report (1991), at 277.

democratic South African. Hence in this case one might argue that the court adopted an
activist approach.
In Bhe v Magistrate of Khayelitsha84 2005 (1) SA 580 (CC) the Constitutional court was
faced with yet another issue left open by the failure of the Constitution to adequately
reconcile and balance right to equality with customary law. The question that arose was
whether in the new dispensation, two young girls born outside marriage recognized in
civil law were to be deprived of any right to their father’s estate, which under the
applicable customary law of succession was subject to the principle of primogeniture
under which the estate accrued to their paternal grandfather. In granting an order that the
legislative provisions under which this happened were invalid, the Constitutional court
relied on the infringement of the right to equality and dignity of women and their rights
of the child enshrined in the Bill of rights. The court after a detailed consideration of the
customary law rule of primogeniture concluded that it was inconsistent with the
Constitutional insofar as it discriminated against women and extramarital children and fill
the gaps left by the declaration of invalidity and pending Parliament finding the time to
revise the law, crafted a number of specific measures for the guidance of inferior courts
faced with such a situation. Section 56 (1) of the 2013 Constitution clearly states that all
persons are equal before the law and have the right to equal protection and benefit of the
law. Again the Constitution also advocates gender equality in section 3(g).
Another example of judicial activism came in Minister of Home Affairs v Fourie85a
dealing with same sex marriages. Two women who had a long stable domestic
relationship sought to be married and when this proved impossible, sought an order of
mandamus requiring the Minister of home affairs to recognize their union and declaration
that the common law definition of marriage was unconstitutional. Although some of the
judges in the Supreme Court of Appeal whilst agreeing that the definition was no longer
tenable felt that it was for Parliament to change the law, the Constitutional court declared
the common law definition and relevant sections in the Marriage Act unconstitutional but
84 2005 (1) SA 580 (CC).
85 2001 (4) SA 1184 (SCA).

suspended the declaration and gave the legislature one year to change the law.86 In
addition to that, section 78(3) says persons of the same sex are prohibited from marrying
each other.
In addition to that, besides introducing the notion of “constitutional damages” in the case
of Modderklip, the judges in South Africa have been active in crafting appropriate
remedies and processes as the circumstances warrant. In Permanent Secretary,
Department of Welfare, Eastern Cape v Ngxuza,87 where the appellants had challenged
the right of the defendants to act on behalf of other extremely poor people whose
disability grants had been arbitrarily terminated by the provincial government because of
problems of fraud, the Supreme Court of Appeal in a clear instance of activist law-
making considered this a classic instance in which a class action could be brought and
then proceeded to set out the hitherto undefined elements of a class action in South
African law.
JUDICIAL RESTRAINT
This concept is traditionally the opposite of the concept of judicial activism, whereby the courts
interpret the Constitution and any law to avoid second guessing the policy decisions made by
other government institutions such as Parliament and the President within their constitutional
spheres of authority. On such a view, judges have no popular mandate to act as policy makers
and should defer to the decisions of the elected “political” branches of the government in matters
of policy making so long as these policymakers stay within the limits of the powers as defined by
the Constitution. A good example is the case of Magaya v Magaya88where issue in the case was
whether a daughter could be an heir to her deceased father’s estate in a case where there are male
children of the deceased. In this case the Supreme Court delivered a bombshell. It held that the
Katekwe v Muchabaiwa had been wrong decided. The Legal Age Majority Act did not affect
rights and duties under customary law. According to Magaya v Magaya, women have no rights
86 For critique of the decision, see N Bohler-Muller, “Judicial Deference and Deferal of justice in regard to same sex
Marriages and in Public Consultation” (2007) 40 De jure 90. The writer points out that the majority judgment was
disappointing tentative while that of the minority, who wanted the court to read in words to cure defects in the law
so that the parties could immediately marry, was bolder more activist. The result of the case was the enactment of
the Civil Union Act 17 of 2006.
87 2001 (4) SA 1184 (SCA).
88 SC210- 98.

of inheritance under customary law, not because they are minors but because they are women in
an African society.
Furthermore, Donaldson j in Corocraft (ltd) Pan- American Airways Inc89 aptly stated that, “The
interpretation of statutes is a craft as much as a science and the judges, as craftsmen, select and
apply the appropriate rules as the tools of their trade. They are not legislators but finishers,
refiners and polishers of legislation which comes to them in a state requiring various degrees of
further processing.” This clearly shows that judges have no popular mandate to act as law makers
or they should interpret the Constitution and any law to avoid second guessing.
Furthermore, section 39 of the 1996 South African Constitution clearly stipulates that:
(1) When interpreting the Bill of Rights, a court, tribunal or forum
(a) Must promote the values that underlie an open and democratic society based on
human dignity, equality and freedom.
(b) When interpreting any legislation and when developing the common law or
customary law, every court tribunal or forum must promote the spirit, purport and
objects of the Bill of Rights.
It is worthwhile noting that section 39 of the 1996 South African Constitution merely requires
the South African judges when interpreting a Constitution that is to give effect to the values. This
is not necessarily synonymous with judicial activism; nevertheless, it does make it much easier
than not for a judge to adopt an activist stance.
The primary argument of judicial restraint is mainly employed to confine judges to a strict
application of laid-down rules. In other words, judges should minimize the exercise of their
discretion by more reliance on procedural rules. The opponents of judicial activism premise this
argument on the ground that activism rests on a moral reading of the Constitution which is not
mandated by its text. It is interesting to note that the doctrine of stare decisis also support the
concept of judicial restraint. The operation of the doctrine of stare decisis is best explained by
reference to the English translation of the Latin phrase. Stare decisis literally translate as to stand
by decided matters. The phrase stare decisis is self an abbreviation of the Latin phrase “stare
891969 (1) QB 616 A 638.

decisis et non quieta movere” which means to stand by decisions and not to disturb settled
matters.
It must be argued that one of the implications of judicial activism is that it violated the doctrine
of separation of powers because the law making process lies to the legislature and the
prerogative to interpret the law lies only with the judiciary. In Doctors for life International v
Speaker of the National Assembly90the applicants sought direct access to the Constitutional
Court, alleging that the Parliament had failed to comply with several peremptory provisions of
the Constitution when enacting certain species of legislation concerning public health, in
particular that it had failed sufficiently to facilitate public participation in the law making
process. The court made it clear that it had exclusive jurisdiction in matters of compliance with
the manner and form of the parliamentary process, as this fell under section 167 (4) of the
Constitution. By majority the court held that with respect to some of the impugned pieces of
legislation, applying the test of reasonableness, there was no evidence that had been public
hearings or comments from the public as the legislation required. Faced with the state’s
argument that the court, intervention in the matter breached the doctrine of separation of powers,
the court held that though the doctrine was, the court will not allow it to be used or relied upon to
prevent it from carrying out its obligation to prevent any violation of the constitution. For
practical reasons, the court was prepared to suspend the effect of its order for 18 months to allow
Parliament time to remedy the defect.
The most common accusation regarding judicial activism regarding judicial activism is that
judges impose their own views of the concept of justice. This is because judges would
deliberately depart from the spirit of the Constitution to impose their understanding of justice. In
the case of Zuva Petroleum Pvt Ltd v Nyamande and Another LC/H 195 /14 the case has inspired
a lot of intrigue in labour law circles in that it represents a material departure from numerous
rulings that upheld the illegality of termination of a contract purely on notice and other cause.
Furthermore, usually labour laws tend to favour the employee leaving the employer with little or
no redress however in this case the Honorable judge changed the face of things. This may be a
critical school of thought and necessary intervention from the judiciary in as acknowledge as
follows. The challenge in the view taken by the labour court is that it may be construed as
90 2006 (6) SA 416 (CC).

constituting a material departure from the concept of rule of natural justice that defines our
employment jurisprudence. A key ingredient of such being the rights to be heard before adverse
decisions are taken against an employee. Could termination of a contract of employment be
exercised without regard to the principle of natural justice expressed in the maxim audi alteram
partem (“the audi rule”). The audi rule is a common law principle which has been applied by the
courts in proceedings as part of rules of natural justice, to grant an opportunity to be heard to
persons whose rights, liberty, property, or legitimate expectation have been adversely affected.
THANK YOU!!!!!

BRIANE CONSTITUTIONAL LAW - THE JUDICIARY

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