A row has erupted at the Judicial Service Commission (JSC) over the selection of eight High Court judges as two radically opposed groups have emerged fighting over the selection criteria.
One camp is suggesting that the commission should recommend top 10 performers who got 50% in recently held public interviews, while the other group is adamant that only five who came out with flying colours should -- 70% upwards -- make it.
Judges in Zimbabwe are selected in terms of Section 180 of the constitution which stipulates that the jobs be advertised in the press. After that, the public is invited to make nominations before public interviews are conducted.
A shortlist of successful candidates is then drawn up and submitted to the President for appointment.
The JSC came up with a shortlist of 43 candidates for interviews after screening scores of applications, of which 42 turned up for the first round of interviews.
One did not show up.
After the first round of interviews, only 16 candidates passed with a 50% or higher score.
Three of the candidates who failed to get the required 50% plus score, however, demanded and were allowed to proceed to the second round, which made them 19.
Out of the 19 candidates, 10 managed to pass the second round of interviews which were held on Monday and Tuesday this week.
Of the 10, five managed to obtain 70% and above, yet there are eight positions which need to be filled.
Judicial sources told the Zimbabwe Independent yesterday that the JSC is now divided in the middle on the benchmark pass, with one group saying only those who scored 70% and above should be recommended for the eight positions, while the opposing group wants all the 10 who managed to score 50% and above to be shortlisted.
As such, sources said, a meeting was convened shortly after the second round of interviews on Tuesday in an effort to try and find a solution to the impasse.
At the meeting, the group pushing for the recommendation of all the 10 candidates initially argued that since the number of candidates who scored 70% and above was insufficient, the commission should shortlist even those with 50% plus scores and allow President Emmerson Mnangagwa the chance to pick the final eight judges.
This was, however, vehemently dismissed by the group in favour of premium scores, which reportedly argued that there was need to preserve high standards in the judiciary by ensuring that only the best are selected.
The opposing group, however, countered the argument by stating that it made no difference since the commission had already allowed those with between 50% and 69% to go to the second round.
The other group tried to strengthen its position by arguing that in all previous processes, they had used 70% as the benchmark, but their opponents countered that by saying there is no rule which put the benchmark at 70%.
In fact, they argued, the 70% benchmark was only used once in the five recent processes of selection of judges at the recommendation of a hired private consultant and was neither a legal requirement nor a policy position.
As the camps sought to outsmart each other, the group which favoured the 50% benchmark argued that if the commission stuck to the stringent pass marks, they would end up hiring inadequate numbers.
They further contended that even universities lower their enrolment requirements when faced with a situation whereby applicants would have failed to attain required points for entry.
One of the JSC members is said to have remarked that universities do not close on account of applicants failing to meet the required points or passes; they simply lower the bar to accommodate those available and the JSC must follow suit.
But the other group, not to be outdone, insisted that the commission should just submit the five candidates who scored 70% and above and tell Mnangagwa that they did not get enough competent candidates.
The meeting, however, ended inconclusively, forcing Chief Justice Luke Malaba to convene another meeting which will take place this coming Monday to resolve the issue.
"The commission will meet again on Monday to try and bring finality to the issue and address the quarrel which has ensued between what are referred to as the 70% faction and the 50% faction," a judicial source said.
The Independent has, however, gathered that the matter still remains a tough nut to crack as the groups insisted on maintaining their hardline stances.
"Battle lines have already been drawn. The 70% group is going to insist on that benchmark, which will be strongly opposed by the 50% faction," the source added.
Some of the commissioners have branded the Monday meeting unlawful and are accusing Malaba of name-dropping by saying some of the candidates are being preferred by Mnangagwa.
"You will recall that on Monday and Tuesday this week, the JSC conducted interviews for candidates who wished to be appointed as judges of the High Court. In terms of the JSC's own standards, which have been in place since the days of the late CJ, a candidate is only considered to have passed that kind of interview if they score at least 70% of the combined total mark," a senior JSC member said.
"After the interviews, this process was followed as a result of which only five candidates managed to pass. Sadly, this reflects very badly on the candidates interviewed. At that stage, CJ Malaba indicated that there were certain candidates (three) who had been nominated by the President through third parties and who were supposed to make it into the final list one way or the other. A heated debate ensued amongst the commissioners, lasting no less than two hours.
"Eighty percent of the commissioners took the position that those nominated candidates, having failed the interview, could not have their names on the shortlist through the backdoor particularly on an unsubstantiated assertion by the CJ that they were the President's 'horses'.
At the end of the meeting, it was resolved that only five names would be forwarded to the President. By that resolution, the function of the JSC ceased. As they say in law, the JSC became functus officio."
But these claims have been strongly denied by the other group which insists that the matter is yet to be resolved and there was never a resolution by the Tuesday meeting to submit five names to the President.
Another JSC member also dismissed claims that Malaba had resorted to name-dropping during the meeting, saying that was malicious.
JSC secretary Walter Chikwana said yesterday the matter has not yet been resolved.
"Some of the information you have is inaccurate and even false. I'm not aware of some of the things you are raising," Chikwana said.
"Even then, deliberations of the JSC are highly confidential and must be kept as such. Suffice to say the commission will be meeting on Monday to deliberate and finalise the matter."