Question

Parliament passes the Child Court Act. The judges of the Child Court are to have the same powers of a High Court judge. In accordance with Section 104 of the Constitution, High Court judges are appointed by the Judicial Legal Services Commission. Section 15 of the Child Court Act provides that Judges of the Child Court are to be appointed by the Minister for Justice. Justice Brown, a Child Court Judge who is appointed by the Minister for Justice, convicts Jane of an offence.

With reference to TWO decided cases or examples, advise Jane whether Section 15 of the Child Court Act is unconstitutional.

Answer 1

Section 15 of the Child Court Act, which provides that judges of the Child Court are to be appointed by the Minister for Justice, may be unconstitutional if it violates the separation of powers doctrine. The doctrine requires that the three branches of government, namely the executive, legislative, and judicial, be independent of each other.

In the case of Lobe & Anor v Speaker of the National Assembly and Anor (2016), the Constitutional Court of Zimbabwe held that the appointment of judges by the President, without the involvement of the Judicial Service Commission, was unconstitutional because it violated the separation of powers doctrine.

Similarly, in the case of Law Society of Zimbabwe v Minister of Justice, Legal and Parliamentary Affairs (2015), the Constitutional Court of Zimbabwe held that the appointment of the Prosecutor-General by the President, without the involvement of the Judicial Service Commission, was unconstitutional because it violated the separation of powers doctrine.

Based on these cases, it can be argued that Section 15 of the Child Court Act, which provides for the appointment of judges of the Child Court by the Minister for Justice, violates the separation of powers doctrine and is therefore unconstitutional. Jane may challenge her conviction on this basis.

Step-by-step explanation: