Namatai Kwekwedza v Judicial Service Commission and Minister of Justice, Legal and Parliamentary Affairs

Following the President's acceptance on 11 May 2021 of Chief Justice Luke Malaba's election to extend his tenure beyond age 70 for an additional five years (effective 16 May 2021), the applicant on 20 May 2021 submitted a request to the Judicial Service Commission (JSC) under the Freedom of Information Act seeking information about the processes leading to the extension. The applicant requested details including how the JSC reached its recommendation, whether resolutions were passed, how commissioners voted, and whether the Chief Justice declared a conflict of interest. The applicant also sought information about the JSC's involvement in related litigation (Musa Kika case HC 2128/21 and Young Lawyers Association of Zimbabwe case). The JSC responded on 8 June 2021 denying the request, stating it was not made in accordance with applicable law, was subject to individual rights, and there was no automatic right to the information. The applicant then filed this application seeking a declaration that she was entitled to the information under sections 61 and 62 of the Constitution and section 5 of the Freedom of Information Act, and an order compelling the JSC to respond. The applicant withdrew the application against the second respondent (Minister of Justice).

• Whether the applicant had a constitutional right to access the information requested from the JSC under sections 61 and 62 of the Constitution and the Freedom of Information Act
• Whether the JSC's refusal to provide the information violated the applicant's constitutional rights
• Whether the application had become moot given subsequent developments regarding the Chief Justice's tenure
• Whether the right to access information is absolute or subject to limitations under section 57 (right to privacy) and section 86 (general limitations clause) of the Constitution
• Whether the court should exercise its discretion to hear the matter despite it being moot

The application was dismissed with costs awarded to the first respondent (Judicial Service Commission).

A court may decline to exercise jurisdiction over a matter when it has become moot—that is, when subsequent events have rendered the controversy academic such that a judicial decision would have no practical effect or result. A matter may become moot not only at the commencement of proceedings but also at the time a decision is to be made. Even where constitutional rights to freedom of information and expression under sections 61 and 62 of the Constitution are invoked, if the underlying dispute has been conclusively resolved and the information sought relates to processes that culminated in a decision that has been confirmed with finality by a higher court, the court will decline to order disclosure where such an order would serve no practical purpose for the applicant or public interest. The proper remedy for a refusal to provide information under the Freedom of Information Act is to appeal through the statutory mechanism provided in section 35 of that Act.

The court observed that while sections 61 and 62 of the Constitution guarantee rights to freedom of expression and access to information, and section 44 obliges state institutions including the JSC to respect, protect, promote and fulfill these rights, such rights are not absolute. They are subject to limitations including the right to privacy under section 57 (particularly regarding health conditions) and the general limitations clause in section 86, which requires that any limitation be exercised reasonably, with due regard for others' rights, and be fair, reasonable, necessary and justifiable in a democratic society. The court noted that the applicant appeared to want specific "yes or no" answers to each question posed, rather than merely acknowledgment that her request had been addressed. The court suggested that medical certificates are protected information under the law. The court also remarked that if the application were truly about general JSC processes rather than the specific case of Chief Justice Malaba, the questions would have been generalized rather than naming the Chief Justice specifically.

This case illustrates the application of the mootness doctrine in Zimbabwean constitutional law and demonstrates the limits of constitutional rights to freedom of information and expression. It establishes that courts will not adjudicate matters that have been rendered academic by subsequent events, even where constitutional rights are invoked, if the decision would have no practical effect. The case also confirms that constitutional rights under sections 61 and 62 (freedom of expression and access to information) are not absolute and must be balanced against other rights such as privacy (section 57) and exercised within the framework of general limitations (section 86). The judgment reinforces that the proper remedy for refusal of information requests under the Freedom of Information Act is through the statutory appeal mechanism rather than approaching the High Court directly for a mandamus. It also emphasizes the principle of finality in litigation—once the Constitutional Court had resolved the substantive issue regarding the Chief Justice's tenure, ancillary matters seeking to investigate the underlying processes became moot.