What Zimbabwe’s Constitution Amendment No. 3 Means for Judicial Independence
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Zimbabwe’s 2013 Constitution sought to strengthen judicial independence by insulating judicial appointments from political influence through provisions guaranteeing transparent appointment procedures and public participation.
The underlying premise was that judicial independence depends not only on constitutional declarations, but also on institutional safeguards that constrain executive discretion and inspire public confidence.
Breaking with the country’s previously opaque appointments system, the Constitution introduced one of the region’s most transparent judicial appointment frameworks. It required judicial vacancies to be publicly advertised, nominations to be invited from both the public and the President, and candidates to undergo public interviews conducted by the Judicial Service Commission (JSC) before recommendations for appointment were made. Public interviews were a constitutional safeguard intended to promote transparency, merit and judicial independence.
The recently enacted Constitution of Zimbabwe Amendment (No. 3) Act changes that constitutional settlement. The amendment now provides that all judges “shall be appointed by the President after consultation with the Judicial Service Commission.” By abolishing public interviews in judicial appointments, it expands executive discretion at precisely the point where the Constitution had sought to constrain it. Viewed against Zimbabwe’s constitutional history since 2013, the amendment represents the culmination of a gradual retreat from the institutional safeguards carefully crafted to protect judicial independence.
The constitutional vision of 2013
The 2013 Constitution reflected an understanding that judicial independence cannot rest solely upon constitutional declarations. Sections 164 and 165 proclaim the independence of the judiciary and require every organ of state to respect and protect that independence. Section 180 complemented those guarantees by prescribing an appointment process grounded in openness and public accountability.
That approach reflected comparative constitutional practice from countries such as South Africa and Kenya. Public interviews were intended to provide a dignified and transparent process through which the public could observe candidates, assess their competence and appreciate the constitutional values they would bring to judicial office. More importantly, they reduced opportunities for appointments to occur behind closed doors through executive patronage.
A gradual constitutional retreat
The first departure from the 2013 Constitutional ideal occurred through the first amendment to the 2013 Constitution, which removed public interviews for appointments to the offices of Chief Justice, Deputy Chief Justice and Judge President. In practical terms, the first amendment reduced transparency in appointments to the judiciary’s most senior leadership.
The second amendment accelerated that trajectory. It permitted serving judges to be promoted to higher courts without public interviews and allowed the Chief Justice, Deputy Chief Justice, judges of the Constitutional Court and judges of the Supreme Court to continue in office for an additional five years beyond the mandatory retirement age of 70, subject to presidential approval following consultation with the JSC and certification of their mental and physical fitness. The immediate beneficiary of the amendment was the sitting Chief Justice. Although the amendment was defended on grounds of institutional continuity and the retention of judicial experience, it nevertheless altered constitutional rules governing judicial tenure in a manner that directly benefited the serving Chief Justice while expanding executive discretion over judicial tenure.
Some aspects of the administration of the public interview process also departed from the constitutional model.
The JSC introduced a staged interview process for appointments to the High Court, Labour Court and Administrative Court, consisting of an initial written assessment followed by public oral interviews. Although this approach may have been administratively motivated, it reduced the transparency envisaged by section 180 and altered the character of the constitutional process. The cumulative effect was that the transformative vision underpinning the 2013 Constitution was gradually watered down, diminishing public confidence in the transparent and merit-based appointments process it had sought to establish.
“It is equally important to acknowledge that Zimbabwe’s public interview process experienced practical shortcomings. At times, interviews descended into a public spectacle rather than serving as dignified constitutional exercises. Those shortcomings were not inherent in the constitutional design itself. Rather, they reflected weaknesses in implementation, including the absence of clear assessment criteria and inadequate procedural guidance by the JSC. These implementation challenges should have prompted institutional reform rather than the abandonment of one of the Constitution’s principal transparency safeguards.”
Viewed collectively, these developments reveal a discernible constitutional pattern, with the latest amendment representing the completion of a gradual shift from transparency towards greater executive discretion.
Why appointment procedures matter
Appointment procedures, tenure protections and transparent promotions together constitute part of the constitutional design that enables courts to function independently. No judicial appointments system is perfect. However, any system committed to judicial independence must at least attach equal importance to appointing competent judges and to establishing institutional safeguards that minimise opportunities for political influence while strengthening public confidence in the administration of justice.
Constitutional institutions derive much of their legitimacy not merely from constitutional text but from the procedures through which they exercise public authority. Transparent appointments, therefore, perform a constitutional function. They constrain executive discretion, reinforce institutional accountability and show that judicial office is attained through an open constitutional process rather than political preference.
The complete removal of public interviews not only represents a regression from the 2013 constitutional framework, but it also creates an internal constitutional inconsistency. The Constitution continues to proclaim judicial independence while simultaneously weakening one of the principal institutional mechanisms through which that independence was intended to be secured.
The amendment also sits uneasily alongside Zimbabwe’s regional human rights obligations. In its recent Concluding Observations on Zimbabwe, the African Commission on Human and Peoples’ Rights expressed concern regarding the first constitutional amendment affecting senior judicial appointments and recommended measures to strengthen judicial independence. Amendment No. 3 instead moves in the opposite direction, raising questions about Zimbabwe’s attitude towards recommendations by the African Commission.
Conclusion
Constitutionalism rarely collapses through a single dramatic event. More often, constitutional safeguards are weakened incrementally through successive constitutional changes that, viewed individually, may appear modest but collectively reshape the constitutional order. Zimbabwe’s recent experience illustrates that process.
The weakening of judicial independence through Zimbabwe’s recent constitutional amendments should, therefore, be understood as part of the cumulative dismantling of constitutional safeguards carefully designed to insulate the judiciary from political influence, resulting in a corresponding expansion of executive influence over judicial appointments.
