Drama as Zim court finds Chief Justice must retire, confusion about an appeal

21 May 2021 · Carmel Rickard

An urgent application, brought last weekend to stave off a constitutional crisis in Zimbabwe, may not achieve this aim, despite a court victory. The case challenged the extension of office of the country’s chief justice, Luke Malaba, for an additional five years beyond the constitutionally mandated retirement age of 70, thanks to a new constitutional amendment. Human rights lawyer Musa Kika, in whose name the case was brought, said that if Malaba were to stay on, unconstitutionally, then all decisions he made would be void. The matter should be heard urgently to stave off a constitutional crisis, he argued. After a marathon hearing, the three high court judges agreed that Malaba had to step down at 70 and that the deputy chief justice should now become the acting CJ. This provoked a furious reaction from the minister of justice who claimed that the judiciary had been ‘captured’ by foreign elements. But the outcome of the case creates a problem for those who wish to appeal. As all the supreme court judges have been cited in the case – they too are affected by the amendment that grants an additional five-year tenure – who is to hear an appeal?

It was 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 70^th birthday on 15 May. He is thus now out of a job.

In response to this decision, the country’s minister of justice, legal and 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 a few days before the hearing, that the CJ would not retire at 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.

Substantive judge

All members of the supreme court and the constitutional court are similarly affected by the sections permitting an additional five year 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 constitutional was adopted in 2013. Under that constitution, judges of all the superior courts have to retire at 70. This provision was ‘purposefully inserted into the constitution by the people of Zimbabwe’, Kika said in his founding affidavit.

During December 2019 it became clear that the cabinet had approved a constitutional amendment that would prolong the tenure of senior judges, a move Kika said was ‘stigmatised as a form of authoritarian consolidation’.

‘Assail’

According to Kika the purpose of the amendment was to ‘assail’ judicial independence. He said it was a matter of regret that, because 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.’

‘Void’

He said that 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. Their judgment has not yet been made available.

‘Captured’

That decision immediately sparked the rage of Ziyambi. He issued 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 that the time ‘may now have come’ to ‘expose’ these ‘malcontents and economic saboteurs’ who would not sleep until they had brought down the government.

‘We are now going to poke the enemy in the eye,’ 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.

Which court?

The only time a similar problem has arisen in the region seems to have been a South African case involving the Judge President of Western Cape, 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, Judge Hlophe lost both. 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, Judge 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 Judge 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.

‘Vacancy’

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 key concept was what 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.

Finalised

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, said the judges.

The court therefore unanimously concluded that, ‘to preserve the fairness of its own processes’, the court should refuse leave to appeal. In other words, Judge Hlophe had to make do without the appeal he had wanted.

It’s a judgment that should have considerable weight when it comes to deciding what to do next in Zimbabwe.

‘A Matter of Justice’, Legalbrief, 18 May 2021

Carmel Rickard

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