It’s been a weekend of great courtroom drama in Zimbabwe. Three High Court judges unanimously decided that the country’s Chief Justice, Luke Malaba, was constitutionally barred from continuing in office beyond his 70th birthday on 15 May. In response to this decision, the country’s Minister of Justice, Legal & Parliamentary Affairs, Ziyambi Ziyambi, issued a vitriolic statement that some lawyers claim amounts to contempt of court. And while the Minister wants to appeal the court decision, there might not be any judges qualified to hear the challenge.
The case, brought as an urgent matter by human rights lawyer Musa Kika against the Minister, Malaba and others, was argued for 11 hours on Friday, beginning at 2pm and running deep into the night. Kika wanted to test the announcement, made late last week, that Zimbabwe’s CJ would not retire on turning 70 as required by the Constitution. Instead, in terms of a new constitutional amendment, President Emmerson Mnangagwa would allow him to stay on for a further five years.
All members of the Supreme Court and the Constitutional Court are similarly affected by the sections permitting an additional five-year term after they turn 70, so Kika cited them all in his application as well. He also cited those judges of the High Court who were acting in the Supreme Court on the basis that any of them ‘may very well be a substantive judge of the Supreme Court’ by the time his application was filed or decided. (The amendment does not apply to High Court judges and they are not given the choice whether to stay on beyond compulsory retirement at 70.)
Following a countrywide referendum, a new Constitution was adopted in 2013. Under that Constitution, judges of all the superior courts have to retire at 70. During December 2019, it became clear that the Cabinet had approved a constitutional amendment that would prolong the tenure of senior judges, a move ‘stigmatised as a form of authoritarian consolidation’.
Kika’s case was that the purpose of the amendment was to ‘assail’ judicial independence, and he added that it was a matter of regret that, as a result of the amendment, the impression could now be created that the judges concerned were ‘being made to receive a favour, one which is fundamentally improper’.
The amendment was hurried through the national assembly and the senate, was given presidential assent on 7 May, and was now said to be in operation.
According to Kika, however, the Constitution required that such a change be the subject of a referendum – which had not taken place. Absent the proper formalities involved in changing the Constitution, the amendment could not lawfully extend the tenure of the senior judges. ‘I must lament the fact that … this matter causes much embarrassment to me as a Zimbabwean, particularly when I have to sue the entire superior court structure.’
He said the matter was urgent because if Malaba were to continue in office beyond his constitutionally mandated retirement date ‘all his actions would be void.’
It was a dispute whose resolution would determine whether there would be a constitutional crisis in Zimbabwe, he said.
The three judges who heard the case agreed it was urgent. They delivered their unanimous decision just hours after argument, holding that, despite the amendment, Malaba was constitutionally required to retire as CJ from 15 May.
Ziyambi responded with a 20-point statement claiming that the judiciary had been ‘captured by foreign forces’, that ‘certain members of the opposition’ were being paid a monthly allowance to cause ‘turmoil’ and ‘for being arrested’. He said and an appeal would be brought.
But the question now arises as to who would hear such an appeal, since all the judges of the senior courts are implicated. Thanks to the contentious amendment, they too are directly affected by the ‘favour’ of being able to stay on for an additional five years, and they are cited by Kika for that very reason.
The only time a similar problem has arisen in the region seems to have been a case involving the Judge President of the Western Cape, SA, John Hlophe. In 2008, judges of the Constitutional Court complained that he had attempted to influence some of its members in relation to a case. Years later, after the judicial service commission decided that the complaint should not be pursued, two applicants challenged this decision in the High Court. The outcome in the two cases was taken to the Supreme Court of Appeal where, in 2012, Hlophe lost in both cases. He wanted to appeal, but the question was – to which court?
There had been some new appointees since the 2008 complaint. But when, in 2012, Hlophe wanted to appeal to the Constitutional Court, many of that court’s judges were still those who had been party to the initial complaint against Hlophe or had become involved in the matter in other ways. This meant they could not sit in the court because of their ‘perceived or actual interest in the outcome of the matter’. If, however, those members recused themselves, there would be no quorum to hear and decide the matter.
In its judgment on the case, the Constitutional Court said that litigants did not have an ‘automatic right of appeal’ and that leave to appeal must only be granted if the court concluded that it was in the interests of justice to do so. This was a key concept and one that ultimately decided the matter.
There was a suggestion that acting judges should be appointed to hear the appeal. But the court found that the Constitution provided for the appointment of an acting judge of the Constitutional Court only where there was a ‘vacancy’ or if a judge was ‘absent’. However, recusal did not cause a vacancy, said the court, nor were judges who had recused themselves, ‘absent’.
The court was also not convinced by the argument that the parties had agreed to the ‘conflicted judges’ sitting in the case when they would normally have had to recuse themselves. So what was the answer? Clearly, the matter had to be finalised. But that did not mean the Constitutional Court had to agree to hear the appeal.
The court therefore unanimously concluded that, ‘to preserve the fairness of its own processes’, the court should refuse leave to appeal.
It’s a judgment that should have considerable weight when it comes to deciding what to do next in Zimbabwe.
LINK: Minister’s comments