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
