Fourteen Judges, Ten Senators, One Court: Amendment No. 3 Meets Its First Legal Test
Weeks after signing Constitutional Amendment No. 3, President Mnangagwa has used its new powers to appoint and promote fourteen judges — without the public interviews the old rules required — even as a separate court challenge asks the Constitutional Court to strike down his ten new senators. So the amendment is now being used and contested at the very same moment — and the President is reshaping the very judiciary that may soon rule on his own appointments. This journal lays out the facts, both cases, and the deeper question.
This is a governance entry, filed in the SADC Journal, and a direct sequel to our earlier piece on Constitutional Amendment No. 3. That piece explained what the amendment changed on paper. This one watches what it does in practice — because a law reveals its true character not when it is signed, but when it is first used. And in the space of two weeks, Amendment No. 3 has been used to reshape the judiciary and challenged in the highest court in the land, at the same time. We apply the same discipline as before: the verified facts, the strongest case each side makes, and the deeper question left for readers to weigh.
Here is the settled ground. On Thursday 27 August 2026, President Emmerson Mnangagwa exercised his expanded powers under Amendment No. 3 to appoint and promote fourteen judges — seven elevated to the Supreme Court, two appointed to the Constitutional Court, and new appointments to the High and Labour Courts, most of them former magistrates. Under the amended constitution, these appointments were made without the public interviews and shortlisting that the process previously required. And this came just as activist Thamsanqa Ncube and the Bulawayo-based rights group Ibhetshu LikaZulu asked the Constitutional Court to block the ten senators the President appointed under the very same amendment. Two uses of one new power — one reshaping the courts, one now being tested by them.
Fourteen Judges, and a Process That Changed
Let us be precise about what happened with the judges, and what is genuinely new about it. The appointments themselves are a normal presidential function; every country’s executive appoints judges. What changed is how.
Zimbabwe’s public judicial interviews were, for years, a point of genuine pride — televised, searching, a rare window in which citizens could watch aspirant judges answer for their reasoning before being elevated. Removing that stage is the substance of the concern. Supporters frame it as streamlining an unwieldy process; critics see the quiet closing of a window that let the public see power at work. Both are describing the same change. What they dispute is what it costs.
Ten Senators, and the Promise Being Held to Account
At the same moment, the other half of Amendment No. 3 is being tested. Readers will recall that the amendment created ten new presidentially-appointed Senate seats, to be filled — in the words of the law, Section 120(1)(e) — on the basis of “professional skills and other competencies,” and after consultation with the National Assembly. On 18 August the President named his ten. Now that appointment is before the Constitutional Court.
The challenge, brought by Thamsanqa Ncube and Ibhetshu LikaZulu, makes two central arguments, and both quote the government’s own words back to it. First, they say the nominees are predominantly ZANU-PF politicians or figures close to the ruling party — not the independent professionals the amendment promised. Second, they say there was no meaningful consultation: the names were simply read out and the Speaker declared “recommendations put and agreed to,” with no debate, no CVs provided, no scrutiny.
The applicants argue that the actual appointments are, in their words, “the precise opposite” of that assurance. This is a fair and powerful line of attack precisely because it does not rely on outside opinion — it measures the government against the promise its own minister made on the floor of Parliament. Whether the Court agrees is now the question. It is worth adding, in fairness, that the state may argue the nominees do bring relevant experience, that consultation occurred as the constitution requires, and that the challenge is premature — and the Court will weigh all of it.
The Referee Problem, in Plain Sight
Place the two moves side by side and the deeper tension becomes impossible to miss. In the same fortnight, the President has gained expanded power over who sits on the courts — including the Constitutional Court — and has had his own use of Amendment No. 3 referred to that very Constitutional Court for judgment. The institution being asked to check the President is, at the same time, an institution the President now has more power to compose.
This is not a uniquely Zimbabwean dilemma — it is the oldest question in constitutional government, asked by Romans and revolutionaries alike: quis custodiet ipsos custodes — who guards the guardians? When the same hand that governs also gains a larger say over who judges the government, the separation of powers that protects every citizen is placed under strain. Naming that strain is not a partisan act. It is the whole point of having a constitution in the first place.
The Case For, and the Case Against
As with every contested political question, a fair reckoning presents each side at its strongest. Serious people defend these moves; serious people oppose them. Here is the best of each.
The Case Supporters Make
- Modernisation. The reforms streamline an appointment process backers call slow and unwieldy, aligning Zimbabwe with systems where executives appoint judges after consulting a judicial commission.
- Legality. Both the judicial appointments and the senate nominations were made under a constitution amended through Parliament and lawfully signed.
- Consultation remains. The President still consults the Judicial Service Commission on judges, and the government says it consulted the National Assembly on senators.
- The courts can decide. That the senate challenge is being heard at all, supporters argue, shows the system working — the ConCourt is free to rule.
- Expertise, not politics. The state can argue its senate nominees bring real professional experience, as the amendment intends.
The Case Critics Make
- Transparency lost. Removing public judicial interviews closes a rare, valued window of public scrutiny over who becomes a judge.
- Concentration of power. More presidential control over courts and Senate, together, erodes the separation of powers that protects citizens.
- Promise broken. The senate nominees are, critics say, party figures — “the precise opposite” of the independent professionals the minister promised.
- Consultation in name only. Names read out, “agreed to,” no debate, no CVs — critics call it the form of consultation without the substance.
- Judging one’s own judges. Reshaping the courts while those courts are asked to rule on your appointments strains the very idea of a neutral check.
Notice, once more, that these are not arguments about different facts. Both sides agree fourteen judges were appointed without public interviews and ten senators were named and challenged. They disagree about what it means — modernisation or erosion, lawful reform or the quiet hollowing of a check. An honest reader can hold that tension, and should distrust anyone who insists the answer is obvious.
“Is It Legal?” Is Still the Wrong First Question
As I wrote when Amendment No. 3 was signed, I will not tell Zimbabweans what to conclude about their own constitution — that judgement is theirs, and a decolonial platform that lectured Africans on how to run their democracy would betray its own soul. But I will offer, again, the question I believe cuts deepest, because it applies here with even more force. Defenders will say: it was all legal. The amendment passed; the appointments followed it; the challenge is being heard. And that is true. But legality is a floor, not a ceiling — apartheid, too, was legal — and “is it legal?” must always yield to the harder question: does this strengthen the people’s power over those who govern them, or weaken it?
On that measure, the honest reading is uncomfortable. Removing public judicial interviews takes a window of scrutiny away from citizens and gives discretion to the executive. Filling the Senate by presidential hand concentrates power in one office. And doing both while the courts are asked to judge your own appointments places real strain on the one thing that protects an ordinary Zimbabwean from an over-mighty state: the ability of an independent institution to say “no” to power. None of this is settled — the Court may yet rule freely and well, and I hope it does — but the direction of travel is toward a government with fewer people able to check it, and that should concern anyone who loves this country, whatever their party.
So my charge is not a verdict; it is a standard, and a watch. Watch the Constitutional Court in the senate case — whether it rules on the law’s merits, freely and reasoned, or finds a way to avoid the question. Watch whether the new judges act as independent minds or as grateful appointees. Watch whether “consultation” ever becomes more than a word read into a record. Because a constitution is only ever as strong as the institutions willing to enforce it against the powerful — and those institutions are only as strong as a watching, insistent public. The referee must be free to blow the whistle on the captain, or the game is not fair — and this week, we find out whose game it is. Nyika yevanhu, simba kuvanhu — a nation of the people; power to the people.
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