THE COST OF MINIMALISM: HOW THE JSC IS ERODING PUBLIC TRUST IN THE JUDICIARY

View COST OF MINIMALISM: HOW THE JSC IS ERODING PUBLIC TRUST IN THE JUDICIARY 

By Tazorora TG Musarurwa

When the Judicial Service Commission gazetted twenty-nine new judges on 27 August 2026, it managed, somewhere in the process, to invent a judge who does not exist. General Notice 1426A names a new Constitutional Court judge called “Justice Lavender Mavangira.” There is no such person. There is a Justice Lavender Makoni. There is a Justice Susan Mavangira. Somewhere between the President’s desk and the government printer, two real judges were spliced into one. Two more appointees fared little better: the official swearing-in programme lists Mr Justice Mawadze as “Mrs Justice Mawadze,” and Ms Justice Muremba — Esther Muremba — as “Mr Justice Muremba.” A phantom judge and two reversed genders would be a farce in any other line of work. In this one, it is a warning.

These are not proof-reading slips to be laughed off and forgotten. In an appointment process that already asks the public to take a great deal on trust, they are the visible tip of something bigger: a process that moved too fast even to check the names of the people it was elevating to the highest courts in the land. These are the kind of errors that the Supreme Court would declare an appeal as being a nullity. If the Judicial Service Commission cannot get a judge’s identity right on paper, what confidence can the public have that it got the harder things right — the candidate’s competence, character and fitness for the job — before the appointment was made?

That question matters to more than the legal profession. These appointees will decide who keeps a family home in a boundary dispute, whether a person accused of a crime walks free or goes to prison, whether a retrenched worker gets their pension, and whether the government itself has overstepped its powers. An unvetted judge is not an abstract constitutional problem. It is the farmer who loses land on a bad ruling, the widow who loses an inheritance case, the accused who spends longer in remand than the law allows — all because nobody checked, in advance, whether the person on the bench was equal to the job.

This is now possible on a scale it never was before, because Zimbabwe’s method of appointing judges has quietly changed. The Constitution of Zimbabwe Amendment (No. 3) Act, 2026 (“CAA3”) has given the Judicial Service Commission (“JSC”) far more room to act without public scrutiny than it has had at any point since the 2013 Constitution. A reduced legal obligation, however, is not the same thing as a reduced choice. The JSC has read CAA3 as permission to do the least it can get away with, when the amendment in fact leaves it free to be as open and rigorous as it wishes. Drawing on how Kenya and South Africa handle similar constitutional freedom, and on a proving-ground tool CAA3 itself introduced but has so far ignored, this article argues that the JSC should abandon that minimalism — because the public’s confidence in its courts depends on how appointment power is used, not merely on what the law technically permits.

FROM TELEVISED INTERVIEWS TO A CLOSED DOOR

Older readers will remember the old way of doing this. Under the original 2013 Constitution, whenever a judicial vacancy came up, the JSC had to advertise it, invite nominations from the President and the public, interview the shortlisted candidates on live television, and then hand the President a list of three names to choose from. It made for uncomfortable viewing at times — senior judges seeking promotion had to defend their own judgments in front of the cameras, and the process even ended up in court itself, in the “Zibani” case, over whether a sitting Deputy Chief Justice should have had to interview for the top job. But it had one clear virtue: nobody needed to ask who had put a judge forward, or whether their record had been tested, because the country had watched it happen.

That began to change in 2021, when an amendment allowed the President to promote a sitting judge to a higher court on the JSC’s recommendation alone, skipping the public interview. It was framed as a small mercy — sparing senior judges the indignity of re-auditioning for jobs they already held. It was, at the time, a narrow exception.

CAA3, signed into law on 7 July 2026, went much further. It scrapped the advertisement, the public nominations, the televised interviews and the shortlist of three — for every judge, not just promotions — and replaced the President’s duty to act on the JSC’s recommendation with a far weaker duty merely to “consult” the JSC first. In one stroke, the safeguards that had let the public watch its judiciary being built were switched off.

There is, buried in the same amendment, a genuinely useful reform going unused. CAA3 also widened who can serve as an acting judge, allowing any suitably qualified lawyer — not just sitting or retired judges — to sit on the bench temporarily before a permanent appointment is made. This is exactly the tool South Africa uses to let the public and the JSC’s equivalent see, in real cases, how a prospective judge actually judges before handing them a job for life. It is hard to overstate the irony: CAA3 gave the JSC a proper way to test competence, and in the very first mass appointment round under the new law, the JSC did not use it. Every one of the new High Court judges — mostly magistrates and government legal officers — went straight from their previous jobs to a permanent seat on the bench, with no acting stint, no advertised vacancy, and no public account of who put them forward or why.

A FLOOR, NOT A CEILING

This is the point that ought to trouble the country most. CAA3 lowered the minimum the JSC must do. It did not, and could not, stop the JSC from doing more. Nothing in the new law stops the Commission from advertising vacancies, holding its own interviews, or publishing its reasons for a recommendation. Nothing stops it from using acting appointments as the proving ground the law now allows. Judicial power, like all public power in Zimbabwe, belongs to the people, not to the executive that happens to be exercising it on their behalf. A Commission that treats a lowered legal floor as an excuse to do the bare minimum has confused what it must do with what it is allowed to do.

IS THIS JUDGE FIT FOR THE JOB?

CAA3 changed how judges are appointed. It did not touch the constitutional requirement that governs who may be appointed: every judge, from the Constitutional Court down to the Labour Court, must be “a fit and proper person” to hold judicial office. The Constitution does not spell out exactly what that means, but it clearly means more than a law degree and years at the Bar — it means the kind of integrity, temperament and freedom from improper motive that can only be tested, not assumed. That requirement survived CAA3 untouched, because it was never CAA3’s target — only the machinery for checking it was removed.

That leaves the JSC with an uncomfortable question to answer: with no advertised process, no public interview, no invitation for professional or public comment, and evidently not even a careful check of who was being appointed, on what basis can the Commission say it examined — rather than simply presumed — the fitness of each of the twenty-nine appointees in the 27 August Gazette? A constitutional standard cannot be honoured by a process that has visibly stopped checking even the appointees’ names. It also bears repeating that this standard is not free-floating: it is meant to give life to the Constitution’s founding promise of an accountable, transparent state, answerable to the people from whom all public authority — including judicial authority — is derived. A selection process built entirely behind closed doors sits uneasily with that promise, however lawful it may technically be.

EVERYONE ELSE HAS ALREADY SOLVED THIS

Zimbabwe is not the only country whose Constitution leaves room for its judicial commission to act with minimal formal restriction. What sets others apart is that they have chosen to fill that room with openness rather than empty it further — and, as it happens, both the United Nations and Zimbabwe’s own regional peers have already set out how to do it.

In June 2026, just two months before the Gazette in question, the United Nations Special Rapporteur on the Independence of Judges and Lawyers, Margaret Satterthwaite, presented a report to the Human Rights Council setting out the minimum standards a fair judicial appointment process should meet, anywhere in the world. Selection, she wrote, “should rely on objective and pre-established criteria, incorporate integrity screening and impartiality safeguards, and promote diversity and representativeness.” Transparency, she insisted, is “key at all stages of the process,” alongside real opportunities for the public to flag concerns before an appointment is finalised. It is hard to read that report without thinking of the 27 August Gazette.

Zimbabwe’s regional peers already practise what the UN preaches. Kenya’s Constitution asks for little more than that its Judicial Service Commission recommend “suitable persons” — yet Kenya’s JSC advertises every vacancy, publishes shortlists, invites the public to comment on named candidates, and livestreams the interviews. Its most recent recruitment round, in 2025 and 2026, drew over 180 candidates for three courts, all vetted in public. South Africa’s Constitution is just as sparing with detail, yet its JSC has run public interviews for decades and keeps revising its own procedures for fairness.

Here is the irony that ought to sting most. In 2018, the Southern African Chief Justices’ Forum adopted a set of regional standards for judicial appointments — transparent shortlisting, public and professional input, and interviews as the preferred way to test a candidate. The working group that wrote those standards was chaired by a judge of Zimbabwe’s own Constitutional Court, Justice Rita Makarau. Zimbabwe did not merely receive these best practices from someone else. It helped write them, and is now failing to follow them. A JSC that advertises nothing, interviews no one and explains nothing is not simply lagging behind Kenya or South Africa. It is falling short of a standard its own judiciary helped set for the entire region.

WHAT WE STILL DON’T KNOW

None of this is answered by the 27 August Gazette. There is no public record of who nominated the fifteen new High Court judges, several of whom had never sat on any bench before. There is no account of what checks, if any, were made into their competence, their track record, or their disciplinary history. There is no explanation for why the acting-judge route — the very tool CAA3 introduced for exactly this purpose — was bypassed in favour of instant, permanent appointment. And there is, most tellingly of all, no sign that anyone checked the final list closely enough to notice that two judges had been merged into one, or that two others had had their genders swapped.

THE CHOICE BEFORE THE JSC

None of this requires reversing CAA3, whatever one thinks of it. It requires only that the JSC recognise that a lower legal bar is not an instruction to clear it by the smallest possible margin. The Commission could, starting with its very next vacancy, advertise posts, publish the names of nominees before they are appointed, invite public and professional comment, and use acting appointments as the genuine test run the law now allows. Kenya and South Africa prove that a loosely worded constitutional power is entirely compatible with a careful, visible process. Nobody made this choice for the JSC. It is making it for itself, appointment round by appointment round.

A judiciary is not legitimate simply because a President signed a warrant and a Minister caused it to be gazetted. It is legitimate because the public can trust the process that put the judge there, and can point back to that process whenever the judge’s authority is questioned. Section 180, however little CAA3 has left of it, was never meant to be the ceiling of that legitimacy. It was meant to be the floor.

Every vacancy filled without advertisement, every appointment made without a public account of competence or character, and every acting-judgeship left unused as a proving ground is a further step away from that floor, taken quietly, gazette by gazette. The 27 August Gazette should be read as a warning of where that path leads: not merely to a closed process, but to a careless one, in which the very names of the people entrusted with the nation’s justice can no longer be relied upon to have been checked.

Judicial authority in Zimbabwe belongs to the people, not to the executive, and it is the people — not the drafters of CAA3 — to whom the JSC must ultimately answer for the bench it builds. The Commission still has the power to choose transparency. What is missing is the will. That will must be demanded, insistently and without apology, before the next gazette makes the same mistake at a far higher cost. Should the current JSC continue on this path, its legacy will be the illegitimacy of judicial authority.

The author is a practising Advocate and law lecturer at the University of Zimbabwe. He writes in his personal capacity and can be contacted at tazorora@gmail.com

Open Letter to Newly Appointed Judges of the High Court of Zimbabwe.

AN OPEN LETTER TO THE NEWLY APPOINTED AND SWORN-IN JUDGES OF THE HIGH COURT OF ZIMBABWE

 

From Advocate Tazorora TG Musarurwa

 

30 AUGUST 2026

Dear Friends and Colleagues - My Lords and My Ladies,

Allow me, first, to congratulate you. Whatever else is written below, let it not obscure the fact that your elevation is the achievement of a lifetime, and that the country and the legal profession wish you well. To be called to the Bench is to be entrusted with something most lawyers will only ever argue before and never wield. I salute you, I wish you long and honourable service, and I pray you find the work as rewarding as it is heavy.

 

This letter is both congratulation and warning: congratulation because judicial office deserves honour, and warning because the legitimacy of your appointments will now depend less on how you entered office than on how visibly independent, disciplined and courageous you become in it.

I would ask you, though, to resist the temptation to think of what has happened to you as a promotion. Some of you come to this office from the magistracy, some from the Labour Court, some from private practice, the Prosecuting Authority or academia. In every case, you have not merely moved up a rung on a ladder. You have crossed into an office different in kind from any you held before. This appointment is a transformation.

Section 171(1)(a) of the Constitution gives the High Court original jurisdiction over all civil and criminal matters throughout Zimbabwe. There is no monetary ceiling, no schedule of competencies, no list of offences reserved elsewhere. The High Court is a court of inherent and unlimited jurisdiction, and whatever the Constitution and the law do not expressly take away from you, you have. No previous appointment any of you has held is like this. A magistrate exercises a jurisdiction that is conferred, defined and bounded by statute. You now exercise one that is presumed. That difference is not administrative but constitutional, and it changes what kind of person you must now become.

Because the office is that weighty, I would be dishonest, and you would rightly think less of this letter, if I pretended not to notice how you came to hold it. You have been appointed under the Constitution of Zimbabwe Amendment (No. 3) Act, which repealed the provisions of section 180 requiring the Judicial Service Commission to advertise judicial vacancies, to conduct public interviews, to compile a list, and to bind the President to it. In their place stands a bare requirement of consultation. The President appoints; the Commission is consulted. This is a retreat, and we should call it what it is.

In 2013 the people of Zimbabwe voted, in a referendum, for a Constitution whose section 162 declares that judicial authority derives from the people of Zimbabwe. Not from the executive, not from Parliament, but from the people. The public interview process, for all its imperfections and occasional theatre, was the one moment in the life of a judicial appointment when that principle became visible. The nation could see the candidates, hear them reason, and form a view. The social contract was, however briefly, made flesh. That window has now been closed, and what replaces it is opaque by design. A process from which the public is wholly excluded cannot convincingly claim to exercise authority derived from the public. It returns us to the murky architecture of an earlier era, in which the bench was populated by the grace of the powerful and the gratitude of the appointed. It is retrogressive, it is anti-people, and it is, I am afraid, the water in which your appointments now swim and from which the people must drink.

I say this to you plainly, not to wound, but because you will hear it whispered in every corridor of every court you sit in, and it is better that someone says it to your face. Having said it, let me say the thing that matters far more: a tainted process does not necessarily produce a tainted judge. It produces a judge with something to prove.

You did not design Amendment No. 3. You applied for a post, or you were offered one, and you took an oath. That oath is now yours, and it is the only thing about your appointment that lies entirely within your control. Consider what was said of Mogoeng Mogoeng when President Jacob Zuma appointed him Chief Justice of South Africa in 2011, over the strenuous objections of the bar, civil society and a substantial part of academia. Many feared that South Africa had acquired a presidential loyalist.

 

Five years later that same Chief Justice wrote the unanimous judgment in Economic Freedom Fighters v Speaker of the National Assembly 2016 (3) SA 580 (CC), holding that the same President who had appointed him had failed to uphold, defend and respect the Constitution, and that the Public Protector's remedial action was binding. Nobody today argues about how Mogoeng CJ was appointed. They argue about what he wrote.

That is the only exit available from the shadow of your appointment. Not protest, not explanation, not a defensive speech at the opening of a legal year, but judgments. Let your judgments be your vindication. Write them well, write them promptly, and write them so that the reasoning stands on its own feet and would persuade a stranger who knows nothing of Zimbabwean politics. A well-reasoned judgment is the most eloquent answer any judge has ever given to the question of how he came to be a judge.

You are not the first to hold this office, and what is asked of you is very old. In 1607 Sir Edward Coke told James I to his face that the King could not decide cases himself, because the King sits under God and the law. James called it treason. Coke did not withdraw it, and it cost him his office. A century later the Act of Settlement fixed the tenure of judges during good behaviour rather than at the pleasure of the Crown, for one reason only: a judge who can be dismissed for a judgment is not a judge. Our section 186 is that provision's direct descendant, and you should know what it was bought with.

Courage of that kind is almost always exercised alone. Lord Atkin dissented by himself in Liversidge v Anderson in 1941, at the darkest hour of a war, insisting that judges stand between the subject and the executive. He was a minority of one, and history has now recorded that the other four were wrong. Nor need we look abroad for the example. The Supreme Court of Zimbabwe under Dumbutshena CJ and later Gubbay CJ was cited with respect from Windhoek to Delhi. Those judges were not braver men than you. They understood that a court's reputation is built one judgment at a time and lost all at once.

Scripture is blunter still, and most of you know these passages better than I do. The first delegation of authority in the Torah is a judicial appointment. In Exodus 18:21, Jethro tells Moses to choose "able men, such as fear God, men of truth, hating covetousness." Competence, reverence, honesty, and a settled hatred of gain. Loyalty to the appointing authority does not appear on the list. Moses then charges those judges, in Deuteronomy 1:17, to hear the small as well as the great, and not to be afraid of the face of man, for the judgment is God's. Your oath is a translation of that sentence.

Jehoshaphat put it to his own appointees, in 2 Chronicles 19:6, more sharply than any modern constitution has managed: "Take heed what ye do: for ye judge not for man, but for the LORD." And the negative case is drawn in a single phrase. The unjust judge of Luke 18 is a man who "feared not God, neither regarded man." No bribe is mentioned and no threat, only the absence of anything he answered to. That is the entire diagnosis, and it is the one you should fear, because it is the only one that arrives without your noticing.

None of this is implemented by piety in speeches. It is implemented in four unglamorous daily disciplines. Hear both sides fully, and especially the side you find tiresome, because audi alteram partem is nothing more than the operational form of hearing the small as well as the great. Recuse early and recuse generously, remembering that the moment you find yourself constructing a reason why you may properly sit, you have already answered the question. Give reasons, always, because a judgment without reasons is an exercise of power rather than of judicial authority, and reasons are precisely what distinguish a court from a decree. And deliver on time, because a reserved judgment sitting in a drawer for two years is a denial of justice, and it is also, as our recent history shows, the most common ground on which judges in this country lose their office.

That last point brings me to something more difficult. Many of you come to the bench from institutions in which it was understood, though never written down, that certain files carried expectations, and that a superior might indicate how a matter ought to end. Let me be direct about it. That practice is a corruption of the judicial function and a betrayal of every litigant who ever stood in that courtroom believing that the person on the bench was deciding their case. That it is widespread does not make it less so, and that everybody knows about it does not make it less so.

But here is what I most want you to understand. It stops here, and it stops here because the Constitution says it does. Section 186 gives you tenure until retirement at the age of seventy years. Section 187 permits your removal only for incapacity, gross incompetence or gross misconduct, and only through a tribunal appointed by the President on the advice of the Judicial Service Commission.

 

Nobody can transfer you to a hardship station for a judgment they dislike. Nobody can stall your confirmation. Nobody can quietly make your professional life impossible in the way that continues, silently and shamefully, to plague your former colleagues in the magistracy. You now hold something your old colleagues do not: you cannot be punished for deciding a case correctly. That protection was not given to you for your comfort. It was given so that you would have no excuse. Do not carry into the High Court a habit of deference that was itself unlawful, and that the Constitution has now made unnecessary. The first time a telephone rings, or a note is passed, or a senior colleague mentions in a corridor that a particular matter is sensitive, you will discover what your oath is actually worth. Decide now, in the calm, what you will do then, because it is much harder to decide in the moment.

 

If you are to remember anything from this missive, please remember this. The Judicial Service Commission is not the employer of judges. It is a constitutional commission entrusted with the administration of the judicial service, the facilitation of court operations, and the promotion of an independent, accountable and effective judiciary. It may allocate resources, regulate administration, process benefits, assign support staff and advise where the Constitution requires it to advise. But it does not own your conscience, it does not command your reasoning, and it does not sit invisibly beside you when you hear a matter.

 

A judge is not the servant of the Commission in the way an employee is the servant of an employer. A judge is an officer of the Constitution, appointed to exercise judicial authority that section 162 says derives from the people of Zimbabwe, and protected by sections 186 and 187 precisely so that no administrative authority may convert supervision into control. Treat the Commission respectfully, because the administration of justice depends on it. But do not mistake administrative machinery for judicial mastery. The files may pass through the Commission; the oath does not.

I would rather appeal to your conscience than to your fear, but conscience is served by clear sight, so let the record be stated. In the constitutional era, every judge in Zimbabwe against whom a section 187 tribunal has been constituted has left the bench. Justice Paradza in 2006, Justice Bere in 2020 for gross misconduct, Justice Ndewere in 2021, Justice Mabhikwa in 2022. Not one has been cleared and returned to the bench. You may draw from that whatever inference you wish about the independence of such tribunals; I make no argument about it here. I make only the practical point, which is not in dispute, that once the tribunal is appointed the matter is effectively over. By then it is too late for good intentions, for character references, or for explanations about workload and misunderstanding.

And life after judicial disgrace is bleak in a way that is difficult to convey to anyone who has not watched it happen. The profession does not readily take back a judge who has been removed. Clients do not come. Old friends become unavailable. The pension arrangements are uncertain and frequently litigated. The transformed magistrate or law officer becomes without a home to return to. The name that was to have been the family's inheritance becomes a footnote in a law report about the return of a motor vehicle. That is the whole of it. Let that be your stick if you need one, though I would far rather you never needed it.

Related to this, let me say something that is rarely said aloud. Judicial office will not make you rich, and it was never designed to. Nobody in the history of this country has entered the judiciary as a route to prosperity and left it with both prosperity and honour intact. If wealth is what you want, there is an honourable path to it and it is called private practice. Go and build a firm, take the risk, chase the work, bill the hours, carry the overheads, and accumulate whatever you can, and nobody will castigate you for it.

 

There is no shame in a lawyer becoming wealthy through his own labour in the open market, and the bar is full of people who have done exactly that and are respected for it. Note, though, that even that path guarantees nothing; practice is hard, and many who leave for it do not thrive.

 

What you cannot do, however, is have both. You cannot take the security, the deference, the title and the protected tenure of judicial office and simultaneously treat that office as a business opportunity. The moment a litigant, a legal practitioner, a permanent secretary a government minister or whoever comes to believe that your favour has a price, your usefulness to this country has ended, whatever a tribunal may later find.

They will come to test that, and they will not look like corruption when they do. Legal practitioners will try, usually through familiarity rather than money, by way of shared history, the golf, the professional favour, the quiet drink at which a pending matter is mentioned in passing. Litigants will try, sometimes crudely and sometimes through intermediaries who leave you room to pretend you did not understand. But you should know where the real danger lies, because the greatest corrupter of judicial office in Zimbabwe is neither the litigant nor the practitioner. It is the State.

The State corrupts differently. It does not usually offer money. It offers something far harder to refuse, which is belonging. It offers the residential stand, the farm, the equipment and the vehicle scheme that do not appear as standard judicial entitlements, the foreign trips, the elevation to the Supreme Court, international judgeship, the commission of inquiry chairmanship, the sense that you are part of the national project rather than an obstacle to it. Above all it offers the absence of trouble. And it asks for nothing explicit in return; it merely creates a condition in which you gradually come to find that the State's cases are, on the whole, rather well founded. You will easily find yourself being the second lawyer for the government instead of being the judge. That is how benches are captured, not in a single dramatic surrender but through a hundred small accommodations, each of which seemed reasonable at the time. Watch for it. Your oath is your only defence, and it is entirely sufficient if you actually mean it. It binds you to administer justice to all persons alike without fear, favour, affection or ill-will, and the State is a person before your court like any other. It is entitled to justice. It is entitled to nothing more. Without fear or favour is not a slogan but a creed, and a creed is something you are prepared to lose things for.

My Lords and My Ladies, I have said hard things in this letter, and I have said them because I take your office seriously and I believe you do too. Flattery would have been easier and worth nothing. You did not choose the constitutional moment into which you have been appointed. You inherit a bench under scrutiny, a public that is sceptical, and a process that has handed your critics an easy argument. None of that is your fault, and all of it is now your responsibility. But you also inherit something better: an office of unlimited jurisdiction, security of tenure, a rich common law tradition, and the memory of Zimbabwean judges whose judgments were once read with respect across the world. That inheritance is not spent. It is waiting.

Be vindicated by your judgments. There is no other vindication available, and no other is needed.

Congratulations, once again, on your appointment. May you serve with courage, with learning and with integrity, and may this country one day speak of your bench the way it once spoke of its best. As tradition demands, I shall be formally introducing myself to you in chambers once I have the privilege of a matter that is set down before you.

 

Until then, I am,

Faithfully yours,

 

Advocate TTG Musarurwa

 

Advocates’ Chambers

 

Harare.