Francis Bere v Judicial Service Commission & Ors

The applicant, a former Supreme Court judge, was suspended from judicial office on 3 March 2020 following the President's appointment of a Tribunal to inquire into his removal. This followed a resolution by the Judicial Service Commission (JSC) on 13 December 2019 to refer the question of his removal to the President under s 187(3) of the Constitution. On 13 May 2020, the applicant filed an application in the High Court under s 4 of the Administrative Justice Act, alleging that the JSC failed to act lawfully, reasonably and fairly when advising the President. He challenged: (1) the authority of the JSC's Secretary to depose to the opposing affidavit; (2) whether the JSC was quorate at its December 2019 meeting; (3) whether he was afforded a hearing before referral; and (4) whether jurisdictional facts under s 187(1) were established. The High Court dismissed the application. The Supreme Court dismissed his appeal with no order as to costs. He then sought leave to appeal to the Constitutional Court.

• Whether the decisions of the High Court and Supreme Court raised constitutional matters warranting appeal to the Constitutional Court
• Whether the JSC could be represented by its Secretary in proceedings relating to s 187(3) of the Constitution
• Whether the onus lay on the JSC to prove it had a quorum under s 344 of the Constitution
• Whether s 187(3) requires the JSC to afford a judge the full scope of the audi alteram partem rule before advising the President
• Whether the JSC must determine the existence of jurisdictional facts under s 187(1) before sending advice to the President
• Whether the application satisfied the requirements for leave to appeal under Rule 32 of the Constitutional Court Rules

The application for leave to appeal was dismissed with no order as to costs.

A constitutional matter, as defined in s 322 of the Constitution, arises only where there is an issue in dispute raising questions requiring the interpretation, protection or enforcement of the Constitution. The Constitutional Court's appellate jurisdiction under s 167(1)(b) is strictly limited to deciding appeals against decisions of subordinate courts on constitutional matters. No grounds of appeal can lie to the Constitutional Court if the subordinate court had no constitutional matter before it to determine. A constitutional matter must be properly pleaded and raised at the court of first instance with clear foundations in constitutional provisions; mere incidental references to the Constitution in support of a statutory or common law cause of action do not constitute a constitutional matter. Where a party elects to pursue a statutory remedy (such as under the Administrative Justice Act), the doctrines of subsidiarity and avoidance require that party to exhaust that remedy without recourse to constitutional principles unless the enabling statute itself is challenged as unconstitutional. The jurisdiction of the Constitutional Court cannot be activated in the absence of a clearly defined constitutional matter having been determined by the subordinate court, even where the case raises issues of general public importance.

Patel JCC observed that questions pertaining to the tenure and removal of judges from office are vital to the independence of the judiciary, which constitutes the cornerstone of every constitutional democracy. The security of judicial tenure is to be jealously guarded and should not be derogated from except in the clearest circumstances, and is undoubtedly a matter of considerable public importance. However, the adjudication of any such question must be inextricably linked to the determination of a constitutional matter. The Court also reaffirmed the established practice under Rule 55 of the Constitutional Court Rules that generally no costs are awarded in constitutional matters, and found no basis to depart from this norm in the present case.

This case is significant in Zimbabwean constitutional jurisprudence for clarifying the jurisdictional limits of the Constitutional Court and the requirements for accessing it on appeal. It reinforces that: (1) the Constitutional Court's jurisdiction under s 167(1)(b) of the Constitution is strictly confined to deciding constitutional matters; (2) parties must properly plead and raise constitutional issues at first instance with clear foundations in the Constitution itself, not merely make incidental references to constitutional provisions; (3) constitutional matters cannot arise for the first time on appeal when they were not properly before the subordinate court; (4) where a party chooses a statutory remedy (such as under the Administrative Justice Act), the doctrines of subsidiarity and avoidance require exhaustion of that remedy without resort to constitutional grounds unless the statute itself is challenged; (5) the Constitutional Court cannot grant leave to appeal merely because a matter raises issues of general public importance (such as judicial independence) if no constitutional matter was properly determined below; and (6) Rule 32 of the Constitutional Court Rules imposes strict requirements for leave to appeal applications. The judgment provides important guidance on proper constitutional pleading and the distinction between administrative law challenges and constitutional challenges, even where both may involve constitutional bodies like the JSC.