1. A month ago, on 25 February 2021, the Constitutional Court of Zimbabwe (hereafter “the Court”) issued an important judgment that largely went unnoticed. It is a judgment that should concern those interested in the national governance architecture and the on-going attempts by the Government to amend the Constitution.
2. The judgment also represents another example of the Court’s reluctance to take a bolder approach in defence of the Constitution. Instead, the Court continues to take a deferential approach to the executive arm of the state, in the process, negating the principles and values of the constitution. The judiciary is supposed to hold the executive and the legislature in check; to stop them when they violate the Constitution. But the Court goes out of its way to condone and accommodate the government’s excesses, over-stretching the Constitution to a point of insignificance. To examine the judgment and its implications, I begin by setting out the background facts.
Constitutional Amendment (No. 1)
3. Sometime late 2016, the Government of Zimbabwe started a process of amending the Constitution of Zimbabwe (hereafter “the Constitution”) for the first time since it was adopted in 2013. The purpose of the Constitutional Amendment (No. 1) Bill was to change the procedures by which heads of the judiciary were appointed. The heads of the judiciary are the Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court. There were other amendments regarding the Labour Court and the Administrative Court.
4. Under the 2013 Constitution, all judges were to be appointed through a single judicial appointments process which involved public nominations and interviews conducted by the Judicial Services Commission (hereafter “the JSC”). The JSC would then recommend suitable candidates to the President. While the President made the final appointments, his discretion was effectively limited because he could only choose from the pool of candidates recommended by the JSC.
5. There are several advantages to this process:
5.1 Most significantly, the appointment process is open, transparent, and accountable. Everything is done in the glare of the citizens, from whom judicial authority is derived.
5.2 It is also a more inclusive process in that citizens are involved both as nominators of candidates and as the audience in the interviewing process. Citizens already elect members of Parliament and the President, but for the first time in our history, citizens could play an active role in the appointment of members of the third arm of the state.
5.3 For their part, candidates for judicial office knew they were being judged not just by the panel of interviewers, but also by the citizens who were watching in the public gallery. There would be no place to hide.
5.4 For the judicial system, this process has the advantage of promoting meritocracy ahead of the partisanship and elitism of the past. In the old days, if you were not in the minister’s old boys’ network, you were unlikely to be considered for judicial office. The Minister of Justice, Legal and Parliamentary Affairs simply went around his circle sounding out preferred candidates. If one of them thought it was a good idea and consented, the Minister would make a recommendation to the President. Citizens would only read in the newspaper that so and so had been appointed a judge of the High Court or Supreme Court. It was an opaque process.
5.5 The 2013 Constitution changed this old process and introduced judicial interviews for every candidate for judicial office. It was in terms of this process that the current Chief Justice was appointed in 2017. That process was nearly derailed by an attempt to change the procedure just when the process had started. The then Chief Justice Godfrey Chidyausiku was approaching retirement age. He did the right thing as Chairperson of the JSC when he kickstarted the process of choosing his successor months ahead of his retirement.
6. The then Minister of Justice, Emmerson Mnangagwa, who is now the President, was not happy and spearheaded the proposed changes under Constitutional Amendment (No. 1) Bill. With hindsight, he was already angling for higher office and had a preferred candidate in mind whom he did not want to go through the judicial interviewing process.
7. Under the proposed changes the Chief Justice, the Deputy Chief Justice, and the Judge President would now be appointed directly by the President in consultation with the JSC but without any public interviews. This was effectively a return to the old days where the President had a wide discretion to appoint whomsoever he wanted. The JSC could provide its views but he had no obligation to follow it. It represented a reversal of the gains that had been made in 2013 and was the start of the erosion of the constitution.
2016-17 Legal Battle
8. A legal battle ensued when one Romeo Zibani applied to the High Court to stop the on-going process to choose the new Chief Justice to make way for the passage of Constitutional Amendment (No. 1) which would change the process. Zibani was a typical tortoise on a lamppost – he was likely doing the bidding of the group that was trying to stop the process of choosing the next Chief Justice. Zibani won the case at the High Court. I wrote a critique of that judgment in 2016 showing why it was an incorrect decision. The judgment was later overturned by the Supreme Court.
9. The JSC promptly appealed to the Supreme Court, suspending the operation of the High Court order, and allowing the process to proceed. This is how Chief Justice Malaba was appointed to his current office. A few months later, Constitutional Amendment Act (No. 1) was passed into law. This meant the next Chief Justice would be appointed under a different system. The first person who was appointed in terms of Constitutional Amendment (No. 1) was Deputy Chief Justice Elizabeth Gwaunza. She became the first woman to occupy the second-highest judicial office in the country. However, as will soon become clear, her appointment was fraught with illegality.
Legal Challenge against Constitutional Amendment (No. 1) Act
10. However, it soon emerged that there was a problem with Constitutional Amendment (No. 1) Act. Two opposition legislators, Innocent Gonese and Jessie Majome made an application to the Court, challenging the constitutionality of the constitutional amendment. Their principal argument was that the constitutional amendment did not comply with the strict procedures of amending constitutional provisions that are set out under section 328 of the Constitution.
11. On 31 March 2020, the Court ruled in favour of Gonese and Majome, holding that the constitutional procedure for amendments had been violated. The amendment procedure requires that at least two-thirds majority of the total membership of the Senate must vote in favour of a Constitutional Bill before it is passed by Parliament. This part of the process had not been followed. For constitutional lawyers, the judgment was a major constitutional moment as the Court confirmed that it was possible to challenge the constitutionality of a constitutional amendment.
12. The effect of the Court’s finding was that Constitutional Amendment (No. 1) Act had never been passed into law. To put it differently, there was no Constitutional Amendment (No. 1) Act. It was a nullity. This meant that everything that was done under its terms was fraught with illegality. Consequently, the appointment of Deputy Chief Justice Gwaunza and other acts were null and void. Realizing these consequences, the Court tried to be creative to save the situation. However, as I explain in this BSR, this attempt at judicial creativity was clumsy and has brought with it several problems for the Court and the Government.
How the Court tried to be creative and erred
13. The Court tried to be creative by suspending its declaration of invalidity of the constitutional amendment for 180 days. During that period, the current Senate would take corrective measures to ensure that a proper vote on the Bill was conducted. In its wisdom or lack of it, the Court believed this would cure the defect that had led to the illegality of the constitutional amendment. This was the start of a chaotic path that led the Court to a sticky wicket.
In my critique of the judgment last year, I argued that while the Court had done a great feat setting a precedent that a constitutional amendment could be declared unconstitutional, it had made two serious errors.
First Error: Declaring Bill, not the Act as invalid
15. The first error was that the Court had declared that the Constitutional Amendment (No.1) Bill was unconstitutional when the declaration of unconstitutionality should have been against Constitutional Amendment (No. 1) Act. The difference between a Bill and an Act is elementary which means the Court could not have been confused between the two. After all, the judges knew there were two applications: the first was challenging the Bill before it was signed into law and the second was a challenge against the Act once the Bill had been signed into law. Indeed, DCJ Gwaunza was directly appointed by the President without any interviews because the Bill had become law. Yet inexplicably, in this case, the Court decided that it was the Bill that it was declaring unconstitutional, not the Act.
16. I find it very difficult to believe that the Court’s error was innocent. Only the judges know why they decided to declare the Bill to be unconstitutional when they had an Act and a challenge against the Act before them. They ignored what the applicants were seeking and gave them something different. In my critique last year, I used the analogy that the applicants had asked for cows and while the Court agreed that they were right, it had given them donkeys. The applicants were in a bind because the judgments of the Court are final. There was nothing else they could do in the face of the illegality that had been authored by the Court. Their opportunity came, however, when the Government failed to use the 180-window that it was given by the Court to take corrective measures. I will return to this in a moment.
Second Error: Making an Incompetent Order
17. The second error was the Court’s directive to the current Senate to conduct a new vote to pass Constitutional Amendment (No. 1) Bill. This was illegal because that Bill had lapsed when the last Parliament was dissolved in 2018. The legal basis for this argument is section 147 of the Constitution which states that,
“On dissolution of Parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition and other business lapses”.
It was common cause that Constitutional Amendment (No. 1) Bill was before the 8th Parliament which was dissolved just before the elections in 2018. Thereafter the 9th Parliament took office. Under section 147, all Bills that were pending before the 8th Parliament lapsed. The Court should have known that Constitutional Amendment (No. 1) Bill was no longer there. If it had applied its mind to this fact it would not have directed the Senate of the 9th Parliament to vote on a Bill from the 8th Parliament.
18. The Court was asking Parliament to violate section 147 of the Constitution, itself a violation of its constitutional mandate. It might be the highest court in the jurisdiction, but it is also bound by the Constitution, whose provisions it must respect. The directive given by the Court in the original order on 31 March 2020 was asking Parliament to violate section 147 of the Constitution. Therefore, the corrective measure that the Court thought it was prescribing was legally incompetent.
Battle over the Extension
19. These two errors returned to haunt the Court towards the end of 2020, resulting in the judgment under consideration. The Government failed to use the 180 day-window that was given by the Court. This means the current Senate did not take the vote that was required to correct the error. However, a couple of days before the expiration of the 180 day-window, Parliament approached the Court seeking an order for an extension. It argued that the COVID-19 pandemic had disrupted its sittings leading to a failure to take the corrective measures. This application was opposed by Innocent Gonese. He was now on his own, his former partner in the litigation, Jessie Majome having become a Commissioner at the Zimbabwe Anti-Corruption Commission (ZACC).
20. Gonese, who was represented by Tendai Biti, argued that the application for an extension violated section 147 of the Constitution. Readers will recall that under this provision all Bills lapse upon the dissolution of Parliament. Gonese contended that the extension was incompetent because there was no Bill to pass. Although the challenge was directed against the extension, it was effectively a challenge against the illegal order that the Court had issued in March 2020 for, as we have seen, it was a violation of section 147 of the Constitution.
Running for Hills
21. Three judges sat on the Court’s panel and they issued a split decision that effectively favoured the Government. The lead judgment was delivered by Justice Makarau who declined to uphold Gonese’s opposition to the extension because doing so would lead to a review of the constitutionality of the original order which was improper. She did not want to go there because she wanted to protect the finality of the Court’s decisions. Justice Makarau wrote,
“Accepting as we must, that the constitutionality or otherwise of the order made by this Court on 31 March 2020 does not arise for debate and cannot be debated by this Court in this application, the issue that then exercises the mind is how to debate the constitutionality of the order sought in this application without by implication reviewing and debating the constitutionality of the order of 31 March 2020.”
22. Justice Makarau saw the legal missile that Gonese had launched on the Court and ducked. She realized Gonese’s opposition was forcing the Court to review its original decision. But Gonese had only taken advantage of the opportunity that was presented by Parliament. It was Parliament that applied for an extension and Gonese was well within his rights to challenge the illegality of what Parliament was seeking. By a two to one majority, the Court refused to recognize the illegality.
23. The Court was placed in a corner where it had two choices: to confront the illegality of its original order or to run for the hills. The majority of the Court chose to run for the hills. Only one judge, Justice Anne Mary Gowora dared to concede that there was illegality, but I will come back to her shortly. For the majority, Justice Makarau feared that if the Court declared extension unconstitutional, it would “by implication” mean that the original order was also unconstitutional. She did not want to do that because in her words,
“I refrain from making such a finding in deference to the principle protecting the finality of the decisions of the Constitutional Court. The integrity of the decisions of this Court on constitutional matters must be preserved at all times and against all other considerations.”
24. In my respectful assessment, the learned judge was aware of the unconstitutionality of the original order issued on 31 March 2020. She knew that Gonese’s challenge of the extension was well-founded, but she also knew that it would render the original judgment illegal. Hence, she waxed lyrical about protecting the “integrity” of the Court’s decisions “at all times and against all other considerations”. In other words, she was saying “we will protect the decisions of the Court at all costs, even if they are wrong”. But if the court can declare that constitutional amendments are unconstitutional, why should it not have the courage to declare that its decisions are unconstitutional? Why should finality trump constitutionality? What is the logic of waving a wrong decision which is blatantly against the Constitution and at the same time claim to be a defender of the Constitution?
25. Justice Bharat Patel who agreed with Justice Makarau to form a majority took an interesting detour and gave unsolicited advice to Parliament. Justice Patel conceded that Parliament could not act in violation of the Constitution, even on the Court’s orders. He wrote,
“… I am nevertheless constrained to caution that their [Parliament] success in this application does not constitute any licence for the applicants [Parliament] to violate the requirements of the Constitution or to disregard any of its provisions.”
He cited precedent for the point that “anything done in contravention of the Constitution is a nullity”. What this meant for Parliament and its officers was that any act or conduct which violates the Constitution would “remain a nullity, even if carried out purportedly in compliance with the order of this Court. Consequently, in the event that they decide to proceed with the Constitution Amendment Bill (No. 1), they would be obligated to do so, not only in accordance with the voting requirements prescribed in s 328 of the Constitution but also in conformity with any other relevant and applicable constitutional injunction, including the legal ramifications of s 147 of the Constitution.”
26. In this quote, Justice Patel is offering free advice both to Parliament and the Executive that whatever they do, even if it is supposed to carry out a Court order, they must not violate the Constitution because such conduct would result in a nullity. In other words, like Justice Makarau, Justice Patel also knows that section 147 of the Constitution prevents the attempt to correct a lapsed Bill. Even if Parliament goes ahead and votes on Constitutional Amendment (No. 1) Bill within the extension period, that will not cure the illegality based on a violation of section 147 of the Constitution. The reference to the fact that it does not matter if they are “purportedly in compliance with the order of this Court” is the judge advising Parliament that even complying with the judgment of 31 March 2020 will not save the Bill because it would violate the Constitution.
27. What this implies is that any person can still return to the Court to challenge the constitutionality of the Constitutional Amendment (No. 1) Act on the grounds of violating section 147 even if it passed by the current Senate as directed by the Court.
28. Of the three judges who heard the case, Justice Anne Mary Gowora dissented. She did not see anything wrong with dealing with the application for an extension as a separate and distinct matter from the original order. She reasoned that granting an extension would violate section 147 of the Constitution because the relevant Bill had lapsed. Justice Gowora correctly based her reasoning on section 2 of the Constitution which guarantees the supremacy of the constitution which meant that nobody, not even the Court or Parliament could violate section 147.
As she stated, “Section 147 must be given effect to. There is no bill left to debate. Any attempt by the Senate to debate and vote a bill that has lapsed by operation of law is in violation of the Constitution itself.” In his opinion, Justice Patel agreed with this reasoning. He only took a detour and went with Makarau using “procedural” grounds, effectively protecting an order that he knew was wrong.
What then is to be done?
29. It is a legal mess, but it is a mess that the Court created when it issued its original decision last year. I was critical of it for reasons that have now been revealed in the latest case. Once the Court had found that the Bill was illegally passed, it should simply have declared the Act null and void and left it at that. It was up to the government to decide how to proceed. However, the Court went on a frolic of its own and illegally directed Parliament to violate section 147 of the Constitution.
30. The problem, of course, is what to do when the Court violates the Constitution. It had the opportunity to correct itself in this case, but the majority refused to make that correction. Only Justice Gowora had the courage to concede. If the majority had followed her lead, the declaration of invalidity of Constitutional Amendment Act No. 1 would have been confirmed and the onus would be on the government to begin the process afresh. Now, however, the Court has opened a dark path that gives the impression that the government can go ahead and push Constitutional Amendment No. 1. But it is deceptive because it will still be a violation of section 147 of the Constitution and would therefore be illegal.
31. If the government is sincere, it must stop the on-going constitutional amendments and take a fresh approach. As Justice Patel also advised, Constitutional Amendment No. 2 is also affected by the fate of Constitutional Amendment No. 1. If the latter is illegal, the former is also impacted by illegality. Any illegality produces illegality. Both amendments have been clumsy and ill-judged. If the government goes ahead and passes Constitutional Amendment No. 1 Act under the current Parliament, it must be challenged because it will be unconstitutional.
32. It is a shame because the third arm of the state which should be the stabilizing force in a democracy seems to be in utter disarray and at the mercy of the Executive. It has had a Deputy Chief Justice who was illegally appointed in 2017. With a Chief Justice who is less than two months away from reaching retirement age, the judiciary is headed by a proverbial lame duck. He seems to be unaware of his future. He is being kept guessing by the regime.
33. Before the mess of the Constitutional Amendment (No. 1) Act, the process of appointing a Chief Justice was handled by the Chief Justice. The former Chief Justice Godfrey Chidyausiku handled his succession far better than Chief Justice Malaba. Then again, it seems the current Chief Justice is in no mood to retire. The trouble for him is that the regime has been playing mind games. If it wanted to sort out the mess it would have prioritized correcting Constitutional Amendment (No. 1) Act within the window. This means Chief Justice Malaba’s fate is entirely at the mercy of the Government.
34. When all is said and done, Chief Justice Malaba must take the honourable route and retire when his time arrives, just like his predecessor did before him. It has been a long career in the judiciary, but the clock is inching closer to the mandatory retirement age. The last few years have been a chaotic and uncertain period for the judiciary. The worst is when the highest court in the country makes blatantly unconstitutional decisions in the interests of expediency. The Court has a duty to defend the Constitution, not to aid and abet its violation to suit parochial political interests which is precisely what has happened with the handling of Constitutional Amendment No. 1. It’s an embarrassing and terrible mess that even the Court is failing to clean up. Nobody can guess what the future holds, but this is as good a time as any to press the reset button.