Chamunorwa Chingwe v Judicial Service Commission and Others

The applicant, Chamunorwa Chingwe, a 27-year-old Zimbabwean citizen, brought an urgent chamber application challenging the appointment process for judges to the Supreme Court and Constitutional Court of Zimbabwe. The application was filed on 27 May 2021, following Constitutional Amendment No. 2 Act passed on 7 May 2021, which introduced subsection 4(a) to section 180 of the Constitution. This amendment created two methods for appointing judges: the public interview process (subsection 4) and direct appointment of sitting judges on recommendation (subsection 4a). The applicant became aware on 26 May 2021 of alleged impending appointments of Supreme Court judges without interviews. On 3 June 2021, before the hearing, six High Court judges were sworn in as Supreme Court judges following appointment by the President under section 180(4a). The applicant sought interdicts to prevent appointments without following the public interview process and declarations that non-sitting judges must also be considered for appointment alongside sitting judges.

• Whether the certificate of urgency was valid
• Whether the application was urgent
• Whether the application was premature based on speculation/rumour
• Whether the court could interdict lawful conduct carried out in terms of unambiguous constitutional provisions
• Whether the applicant had locus standi to bring the application
• Whether the court could prescribe how constitutional bodies must exercise constitutional powers in the absence of prescribed procedures in the Constitution or legislation
• What degree of proof is required for establishing locus standi in urgent applications

The urgent application for a provisional order was dismissed with no order as to costs.

A court has no power to prescribe how a constitutional body should exercise its constitutional functions when those functions are set out in unambiguous constitutional provisions, in the absence of prescribed procedures in the Constitution or other legislation. A court cannot interdict a constitutional body from performing a constitutional obligation or override the operation of unambiguous constitutional provisions. Where an application seeks legally incompetent relief that cannot lawfully be granted, no prima facie case can be established regardless of other considerations. When relief sought is legally incompetent, the issue of locus standi becomes inconsequential because a court does not grant unlawful orders. The court may review a process carried out by a constitutional body on review where grounds are advanced, but cannot prescribe in advance how such process must be conducted absent constitutional or statutory prescription.

The court made observations about the certificate of urgency being primarily a case management tool, noting that for determining urgency, the judge considers not just the certificate but all papers comprising the application. The court expressed the view that the certificate should not be considered in isolation. The court noted that section 85(3)(c) of the Constitution requires rules of court to ensure that courts are not unreasonably restricted by procedural technicalities while observing natural justice, but this does not prevent respondents from raising legitimate preliminary objections. The court observed that it need not decide the degree of proof required for establishing locus standi (prima facie versus balance of probabilities) where the relief sought is incompetent. The court made sympathetic observations about constitutional litigation, noting that costs should ordinarily not be ordered against parties seeking constitutional relief, and that courts should be receptive to issues raised by citizens about the constitution and functions of courts since judicial authority derives from the people of Zimbabwe.

This case establishes important principles regarding judicial review of constitutional appointment processes in Zimbabwe. It clarifies the limits of judicial intervention in constitutional processes, particularly that courts cannot prescribe how constitutional bodies must exercise unambiguous constitutional powers in the absence of prescribed procedures in the Constitution or legislation. The case reinforces the principle from Judicial Service Commission v Zibani that courts have no power to interdict constitutional bodies from performing constitutional obligations or to override unambiguous constitutional provisions. The judgment also provides guidance on the relationship between the competence of relief sought and issues of locus standi, indicating that where relief is legally incompetent, the legal standing of parties becomes inconsequential. The case is significant in the context of public interest constitutional litigation and illustrates the court's receptiveness to constitutional challenges while maintaining proper boundaries of judicial authority. The decision not to award costs reflects the principle that persons should not be penalized for seeking constitutional relief, particularly in matters of public interest.