This weekend, fourteen men and one woman who lead judiciaries across the southern and eastern African region are gathering at Victoria Falls, the picturesque resort city at the border of Zimbabwe and Zambia, for the Southern African Chief Justices’ Forum Conference. But not even the wonder and majesty of the world-famous waterfall that beautifully interrupts the mighty Zambezi will obscure the legitimacy deficit that encumbers the host.
Among the elevated company that graces the resort city will be Chief Justices whose judiciaries have demonstrated courage in recent years and others who hold a modest and ignominious record. To put it in culinary terms, if it were a buffet, some dishes would vastly popular, while others would barely draw attention. The Malawian judiciary, for example, would be popular. It made waves when it produced a historic decision that overturned a presidential election in 2020. In doing so, it followed the exemplary lead of the Kenyan judiciary which reached a similar verdict a couple of years earlier. It takes great courage and independence to overturn an election result that favours an incumbent.
The South African judiciary has also been exemplary for many years since the country gained freedom in 1994, developing jurisprudence of high pedigree that is coveted the world over. And this year, the apex court outdid itself when it stood up against the headwinds of populism and sent a former president to jail for contempt of court. Some judiciaries allow themselves to be trampled over by junior officials simply because they wave the ruling party card. They are deferential to popular politicians even if they are wrong, their punishment is often soft and inconsequential. In short, they allow themselves to be undermined by strongmen. The Constitutional Court of South Africa rejected that course and did not hesitate to send a popular former leader to jail for contempt of court.
At the lower end of the spectrum, however, lies the host of the high-profile jurists who still sits uneasily on his throne at the top of Zimbabwe’s judiciary. Under normal circumstances, he would not have been there to receive the judicial royalty of the region. Chief Justice Malaba faces serious resistance from the legal profession, civil society, and citizens following the controversial extension of his term of office in May this year, when he should have retired. There are cases against him, which are still pending in the very courts over which he presides. The circumstances that cause this precariousness of his position and indeed his legitimacy are the subject of this article.
A network of peers
The Southern African Chief Justices’ Forum is an important network of governance in the field of the judiciary. Although it is informal, it is one of several networks around the world where judicial officers meet regularly beyond their states to share and exchange information, build solidarity, and advise each other on a peer-to-peer basis. To this end, its website says it “provides a formal platform, structure and framework through which the Chief Justices of Eastern and Southern Africa and Africa at large are able to collectively reflect on critical issues on justice delivery and adopt action plans to address those issues in a systematic and sustained way in order to strengthen justice delivery in the our region.” (sic)
It is part of the system of “network governance” that global governance scholar Anne-Marie Slaughter wrote about in her seminal book A New World Order back in 2004, when she described with some optimism, the increasingly important role of networks in governance beyond the state. As the world’s problems increasingly become networked, there is a need for networked solutions, wrote Slaughter in her seminal book. The view was that parts of the state would increasingly work with similar parts of other states through networks to face common challenges. For example, national financial and environmental regulators would work with similar regulators in other states to tackle transnational problems such as money laundering and pollution.
Legislators would also do the same to tackle policy issues that transcend the state. It is in this context that organizations like the Pan African Parliament for legislators fall. It brings MPs from different countries to work together on matters of common interest. The Southern African Chief Justices’ Forum is such a network for judges. They have areas of commonality such as defending judicial independence, promoting judicial best practice, developing a common approach to the protection of human rights, and much more. The network is the enclave of judiciaries as they seek to forge links and promote their interests in a complex world where others are building similar networks.
While the importance of such networks in an increasingly complex and inter-related world is not in doubt, there is a danger that they can easily become elitist if they do not get input from or engage civil society, intellectuals, and citizens in general. Instead of serving the public interest, they may end up serving the private interests of judges. Politicians have already fallen into this trap, with organizations like the SADC now resembling trade unions of leaders instead of serving the public interest of citizens in the region. It is important, therefore, for networks such as the Southern Africa Chief Justices Forum to open doors to stakeholders such as civil society. Judges already suffer the deficit of being detached from the citizens by the manner of their appointment. They would do well to create platforms for citizen engagement. This article is written in the spirit of engaging the judicial royalty of the region regarding the ongoing crisis in Zimbabwe’s judiciary.
The Crisis in Zimbabwe’s Judiciary
Zimbabwe’s Chief Justice has been in a sticky spot for a few months now. The reasons for this discomfort are deceptively simple. Had things followed the proper constitutional course the Chief Justices would have been received by a new host. However, the natural course of the constitution was rudely, controversially, and arguably illegally interrupted by the hand of politics. How did this happen?
On 31 December 2019, the government gazetted an amendment to the Constitution. One of the changes in Constitutional Amendment (No. 2) was to raise the retirement age of the Chief Justice and other judges of the superior courts, namely the Supreme Court and the Constitutional Court. The original provision in the Constitution adopted in 2013 set the retirement age at 70. The proposed amendment would allow a judge to extend his or her stay in office to the age of 75.
There were several objections to the proposed change. The principal objection was that the retirement provision could not be amended unless it was submitted to a referendum. The argument was based on a provision of the constitution that effectively requires that any changes to a “term limit provision” must be submitted to a referendum. The government’s counterargument was that the retirement provision was not a term limit provision.
A term limit provision is defined in the constitution and it includes the retirement provision. A “term-limit provision” is defined as “a provision of this Constitution which limits the length of time that a person may hold or occupy a public office”. A retirement provision naturally limits the length of time that a person may hold or occupy an office.
The argument is further strengthened by another provision of the Constitution which shows the meaning and implications of changing a term-limit provision. It states that
“… an amendment to a term-limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.”
It confirms that any change that extends the length of time that a judge may hold office is a term limit provision. Second, even where a term-limit provision is successfully amended, that amendment does not apply to benefit a person who already holds or held office as a judge.
Applying this to Constitutional Amendment No. 2, it is an amendment that extends the length of time that the Chief Justice and other judges of the superior courts may hold office. There can be no doubt that it is a change to a term-limit provision that is regulated by the terms of section 328 of the Constitution. This means firstly, that the amendment should have been submitted to a referendum and secondly, even if it had been passed, it could not have benefited Chief Justice Malaba and his fellow judges of the Constitutional Court and the Supreme Court. This, however, is not what has happened in Zimbabwe, leading to the ongoing crisis of legitimacy.
The problem, as we have just observed, emanates from serious procedural irregularities associated with the constitutional amendment extending Chief Justice Malaba’s tenure. The first problem is that the amendment to the term-limit provision was not submitted to a referendum. The second problem is that the amendment was applied to benefit incumbent judges, including Chief Justice Malaba, which is why he is still in office beyond his 70th birthday. It is important to add that the amendment was rushed through Parliament and was passed just a few days before his birthday. It was a clear move to ensure that he benefited from the amendment, which is why commentators refer to it as the “Malaba Amendment”.
The way that the amendment was passed created a third problem of conflict of interest. The amendment operates to the benefit of all incumbent judges of the Constitutional Court, which is the highest judicial authority in the country, and the Supreme Court which is the ultimate court for civil matters. As beneficiaries, these judges were placed in an invidious position where, if the amendment was challenged in court directly or through an appeal, the judges would have to decide a matter in which they have an interest. This was unfair to the judges because they did not choose to be in that position. They were thrust into that position by a government that ignored the constitution to force the amendment through Parliament.
This problem could have been avoided. The framers of the Constitution had devised a simple but ingenious solution to avoid this problem. The solution ensured that judges did not have to be placed into that conflicted role. The solution is the provision that requires the amendment of term-limit provisions to be decided by the citizens through a referendum. By doing so, the framers of the Constitution placed the decision-making role in the hands of citizens, freeing judges from having to be judges in their cause.
All the government needed to do in this instance was to submit the change to the retirement provision to a referendum. However, by ignoring this referendum clause, and forcing the amendment through Parliament, and thereby violating the Constitution, the government’s conduct attracted litigation. This litigation inevitably drew the judges into the fray, but this meant the beneficiaries of the amendment were being called upon to decide regarding its constitutionality. There is a clear conflict of interest. But this leads to a further crisis: if the judges of the superior courts are conflicted, who then has the authority to determine the dispute? They cannot even choose new judges because they have an interest in the matter. A constitutional crisis occurs when there is no clear solution to a legal problem. This is where Zimbabwe is, although there are attempts to force a solution.
Soon after the amendment was passed, the legality of the amendment was challenged at the High Court. In a judgment passed just hours before the Chief Justice’s retirement, the High Court ruled that the amendment was illegal and that Chief Justice Malaba ceased to hold office upon his 70th birthday. This was the manifestation of a crisis that effectively pitted the Chief Justice against his subordinates at the High Court.
It was a courageous judgment by the junior judges to declare that their boss was no longer in office. The judgment also drew insults and intimidation by the government directed at the judges. Regrettably, as the Judicial Services Commission had taken sides with the Chief Justice and judges of the Constitutional and Supreme Courts, it did not support the High Court judges. The amendment therefore also caused a rupture between junior and senior judges, all of which could have been avoided had the issue been submitted to a referendum in the first place.
Soon afterward, an appeal was lodged at the Supreme Court. The High Court decision had shocked Chief Justice Malaba who beat a hasty retreat. Even though the appeal opened a window for him to continue in his role as it suspended the decision of the High Court, he was a little unsure and hesitant. Some key Chief Justice duties, such as the administration of oaths at the swearing-in of judges were performed by his deputy, who was announced by the JSC as the Acting Chief Justice. However, a few weeks later, the Chief Justice began to emerge from the shadows, slowly recovering the space that he had vacated. More recently he presided over the interviews of aspiring High Court judges. He seems to have found his feet again.
However, the crisis of confidence in the judiciary is far from over. A factor that might have given the Chief Justice some confidence is one case that was brought directly to the Constitutional Court by a litigant who sought to challenge the decision of the High Court. This means there are two pending decisions, one of which is the appeal at the Supreme Court and the other the matter at the Constitutional Court. However, both cases suffer the same crisis of legitimacy: all the judges that are presiding over the matters are conflicted. The lawyers and litigants challenging the amendment withdrew in protest when the judges rejected the application for recusal because they are conflicted.
It all goes back to the genesis of the crisis in Zimbabwe’s judiciary: the constitutional amendments were designed to benefit judges who must also decide the constitutionality and legality of the amendments. The litigants do not have confidence that the judges will be fair and impartial. They are the beneficiaries of the amendments. What incentive do they have to rule against amendments that serve their interests, even if they are unconstitutional? There is already a worrying precedent. In March 2020, the Constitutional Court correctly ruled that Constitutional Amendment No. 1 was passed in contravention of the constitutional procedure. This upheld the principle that a constitutional amendment could be held to be unconstitutional.
However, having reasoned so well to reach this ground-breaking conclusion, the Court made a volte-face when it directed Parliament to take back the Constitutional Bill and correct the procedure of passing it. This was an unprecedented order in which the highest court in the country was ordering Parliament to commit illegality. The litigants had challenged the constitutionality of the Act of Parliament because the Bill had already been passed. Once it is found that the procedure of passing it was unconstitutional, it means it was null and void. There was nothing for Parliament to correct. If the government wanted to bring a new Constitutional Bill to Parliament, that was up to it. Yet, the Constitutional Court created illegality by directing Parliament to vote again on a non-existent Bill.
Why did the Court commit such an absurdity? It is arguably because it or at least some of its members had an interest in saving Constitutional Amendment No. 1. The Deputy Chief Justice, Mrs. Elizabeth Gwaunza was appointed to her role under Constitutional Amendment No. 1 which the Court found to be unconstitutional. If the Court had declared it null and void, it meant her appointment would also have been null and void. This could also harm matters and decisions that she had made in her capacity as an invalidly appointed Deputy Chief Justice.
The Constitutional Court was therefore also conflicted when it decided on Constitutional Amendment No. 1: an independent and conflict-free court would simply have declared the amendment null and void and left it to the executive and the legislature to deal with the mess. A conflicted court knew that it could not ignore the illegality of the procedure, which was made plain in argument, but it tried to save the Act by pretending that it was dealing with a Bill, which simply needed to be corrected. The illegality of Constitutional Amendment No. 1 is also currently being challenged before the same Constitutional Court in a case brought by the Law Society of Zimbabwe.
A multi-layered crisis
This, therefore, is the multi-layered crisis at the heart of Zimbabwe’s judiciary, all emanating from a flagrant disregard of the Constitution by the government. The problem is not whether the retirement of judges should be permitted, no. Many might argue that there is no problem with raising the retirement age. Indeed, they might as well stay in office for life, succumbing only to infirmity, voluntary retirement, or the grim reaper. The problem is the procedure of achieving this circumstance. It must be proper and constitutional.
The procedure that was employed to extend Chief Justice Malaba’s tenure and that of other senior judges was illegal because it contravenes the Constitution. Even if they were to rule that it was constitutional, that decision will not inspire public confidence because they are seriously conflicted. It is embarrassing that they consider themselves worthy judges in their cause. A hyena cannot be expected to preside fairly over the prosecution of fellow hyenas for the killing of goats.
Therefore, the current crisis is that the present set of judges are not able to pass judgment on the legality of the amendments in a way that inspires public confidence. As a matter of principle, judges should never have allowed themselves to be used in this constitutional violation. Chief Justice Malaba should have been gracious enough to retire when he reached his retirement age under the 2013 Constitution even if the amendment allowed for an extension. Wise judgment should have compelled him to save the integrity and independence of the judiciary. Now he is a beneficiary of a gift from the executive branch of the state. It is a gift because he would have left office had it not been passed days before his retirement and worse, it offends the constitution and good practice. This became imperative when it was increasingly apparent that the amendment was leading the country into a constitutional crisis. He had a higher duty to save the judiciary and the country from the embarrassing crisis that is in motion.
Instead, he hung on to office at the expense of the integrity of the judiciary. It is usually the case that judges are called upon to decide whether the extension of presidential term limits is constitutional. In Zimbabwe’s case, it is the judiciary, the organ that is supposed to provide checks and balances on the executive and Parliament that is at the centre of controversial term limits extension. It is an embarrassment of gross proportions.
The public loses confidence in the judiciary when the men and women who are supposed to sit in judgment of other people’s matters become the subject of litigation. Citizens cannot expect fairness when judges are called upon to decide matters in which they have a deep interest. It will be very difficult for citizens to bring matters against the government before the court when its head is the direct beneficiary of a gift from the executive.
So what is to be done?
The pity for Zimbabwean citizens is that the very institutions they expect to be the guardians of the Constitution are trampling over it in pursuit of self-interest. How do they even expect justice from a set of judges that are beneficiaries of an amendment that they are challenging? It is a charade. This means citizens are left without legal recourse. This is a dangerous situation because when the legal system fails to provide satisfactory solutions and there is no confidence in the judiciary, citizens end up resorting to extra-legal means. This is inimical to a stable and democratic society based on the rule of law. But how can the rule of law subsist when beneficiaries of unlawful amendments preside over cases to determine their legality?
This is where networks such as the Southern African Chiefs Justices’ Forum come in. In the absence of transnational courts of tribunals to deal with matters in which national justices are conflicted, citizens look to informal networks such as the Chief Justices’ Forum to exercise some peer oversight and controls. They might not have legal powers over their peers, but they can use persuasive power through peer review and censure. Critics of networks fear that they become elitist in that members pamper and give comfort to each other instead of exercising checks on errant conduct. Those who know it well advise that the Southern African Chief Justices Forum is a powerful network where there is robust and candid talk between peers behind closed doors. One hopes the crisis engulfing their host country will not escape their attention.
 Section 328
 Section 328(7)
 The first case was brought by Dr. Musa Kika, executive director of the Zimbabwe Human Rights NGO Forum and the second was brought by the Young Lawyers Association of Zimbabwe