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Student Lawyer Loses Judges’ Appointment Challenge

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By Mary Taruvinga


STUDENT lawyer, Chamunorwa Chingwe has lost a case in which he was seeking an order directing the Judicial Service Commission (JSC) to also consider practising lawyers for appointment as Supreme Court and Constitutional Court judges.

High Court judge, Tawanda Chitapi ruled that the application has been overtaken by events.

Chingwe was also seeking a relief interdicting and ordering the JSC not to proceed with the appointment of any substantive judges of either the Supreme Court or Constitutional Court without following the process “to allow for all persons who are not sitting judges to be considered for appointment for such positions” as enshrined in Section 180 (4) of the constitution.

The judges were however appointed a day before his application was to be heard.

Chitapi ruled the student’s requests were legally invalid.

“Therefore, having found that the provisional order sought is legally incompetent in that the court cannot prescribe how constitutional function reposed in a constitutional body should be exercised by that body unless there exists in the constitution or other legislation reference on how the function must be exercised, the loci standi of the applicant becomes inconsequential.

“If a party petitions the court praying for a legally incompetent order, the court will not bother about the legal standing of any of the parties to the invalid lis.

“In casu, I consider that the applicant acted precipitately in filing the application because it was legally incompetent to order how the respondents were supposed to carry out their function,” he said.

The judge added, “The court would have a right to review the actions done after the event. The applicant stated that he was acting in his own interest.

“He stated that his interest arose from his desire to correct procedure being followed to ensure that only the best and meritorious judges are appointed to the Supreme Court and Constitutional Court because the applicant was a litigant who would have his cases decided in those courts.

“I don’t unfortunately consider it necessary under the circumstances and the approach I have adopted to answer the issue of degree of proof needed.

“I have answered the issue by stating that whether the person who filed the incompetent application has legal status or power to petition the court.

“The other matter requiring comment is the fact that the judges were appointed anyway. Therefore, what was intended to be achieved by this application was overtaken by events.”

In his application, Chingwe, who was represented by the Zimbabwe Human Rights NGO Forum, sought a relief that the respondents in the matter be compelled to adhere to Section 180 (4) of the Constitution before the appointment of the Supreme Court judges to enable persons who are not sitting judges of other courts to be considered for such appointments.