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3) Act, which repealed the provisions of section 180 requiring the Judicial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.
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