BSR: How the constitutional crisis could have been avoided

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The Government of Zimbabwe is the author of the current constitutional crisis where it is unclear how the dispute over Constitutional Amendment No. 2 can be properly and lawfully resolved. It could easily have been avoided if the government had respected and followed the Constitution. There was no shortage of advice, but the government chose arrogance. But instead of getting out of the hole, the government continues to dig.

What is the nature of the dispute?

The primary dispute revolves around the increase in the retirement age of judges. Before Amendment No. 2, the mandatory retirement age was 70 years. There was no room for extension. Amendment No. 2 changes this in respect of judges of the Supreme Court and the Constitutional Court. When they reach 70, they can elect to stay on for 5 more years until the age of 75. The retirement age for High Court judges remained at 70.

The applicants have argued that this extension of the retirement age is unconstitutional. This argument is not based on the merits or demerits of judges serving for a longer period. That issue is irrelevant. Rather, it is anchored on the argument that it is unprocedural. In other words, it is that the amendment does not comply with the special procedure of amending such a provision. But why is it unprocedural?

The argument is that the change in the provision of the retirement age is a change to a term-limit provision and that being the case, it cannot benefit current officeholders. This is prohibited by section 328(7) of the Constitution which 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.”

Note that the problem with Amendment No. 2 is not necessarily that it changes the judges’ retirement age, no. This would be lawful but only if it applied to future officeholders, not current ones. The problem Amendment No. 2 seeks to benefit current judges of the Constitutional Court and the Supreme Court.

The government should have changed section 328(7) of the Constitution to say an amendment to a term-limit provision can benefit current or past officeholders. However, to do that, it is not enough to have a two thirds majority in parliament. The effect of section 328(9) of the Constitution is that there must be a referendum. Therefore, effectively, a change to a term-limit provision which extends that term requires a referendum.

But is a provision concerning the retirement age of judges also a term-limit provision?

The government’s view all along is that the provision for the mandatory retirement age of judges is an age-limit provision and is different from a term-limit provision. In other words, there are two types of provisions: age-limit provisions and term-limit provisions. Based on this, it argues that section 328(7) of the Constitution does not apply to the extension of judges’ retirement age, because it only applies to term-limit provisions. This reasoning is deeply flawed. The distinction being drawn between age-limit and term-limit is based on a misreading of the provisions and also offends the spirit of the prohibition in section 328(7).

The government’s favoured view is that the only term-limit provision regarding judges is in section 186(1) which states, in part, that “Judges of the Constitutional Court are appointed for a non-renewable term of not more than fifteen years …”. They, therefore, conclude that the term-limit provision for judges of the Constitutional Court is 15 years and that since this is not being changed by Amendment No. 2 to benefit current judges, there is no need for a referendum. This is deeply flawed and based on a selective and misleading reading of the provision. The more complete version of the provision reads as follows:

“186(1) Judges of the Constitutional Court can be appointed for a non-renewable term of not more than fifteen years, but – (a) they must retire earlier if they reach the age of seventy years”

The meaning of this is clearly that the 15-year term of a judge of the Constitutional Court is subject to age-limit. If Judge X reaches 70 years when he has served just 10 years at the Constitutional Court, that is the end of his term. He cannot say my term is 15 years, therefore I must remain in office. The Constitution, therefore, uses age as a primary determinant of the length of a judicial term. In short, the distinction being drawn between a term-limit provision and an age-limit provision is fallacious because the age-limit is a factor that determines the length of the judicial term. I suspect a mathematical mind can explain this more vividly and with far less words! (I have asked a mathematician colleague to apply his mind to this situation and the attachment at the end of this article demonstrates his output). The fundamental point here is that the attempt to distinguish a term and age limit is disingenuous and has no basis in the Constitution.

Constitutional Definition

But even if the distinction between age-limit and term-limit has no basis in the Constitution, there is another good reason why the view favoured by the government has no merit. It is that they have tried to construe a term-limit provision as if it only has a dictionary meaning. On that reasoning, the comb through the Constitution looking for provisions where a “term” is mentioned. On that basis, they try to exclude any part which does not specifically mention the word “term”. It is on this basis that they say section 186(1) refers to a term-limit for a judge and that retirement age is not a term. But I have already debunked this myth by demonstrating that even this term-limit is determined by age, so there is no difference.

However, the most important issue is that a “term-limit provision” is defined by the Constitution. When legislation contains a definition for a word, it is because parliament wanted it to have that meaning, regardless of whatever other meaning it might have in other contexts. The basic rule is that you apply the definition provided in the legislation. Likewise, in this case, the applicable definition of a term-limit provision is not what people imagine or find in a dictionary but what the Constitution says.  The framers of the Constitution were very careful to define the meaning of a term limit provision. It is only this definition that matters. Let us see how it is defined.

Section 328 of the Constitution states that “”term-limit provision” means a provision of this Constitution which limits the length of time that a person may hold or occupy a public office”. Does a maximum retirement age limit the length of time that a person may hold or occupy office? The answer to this is it does. A judge can only hold office until he or she is 70. Anything beyond that would be lengthening their time in office. The argument becomes more complete when this definition is read together with section 328(7) which shows the meaning of changing a term-limit provision. It states as follows:

“… 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.”

We have already seen what a term-limit provision is in the definition. What section 328(7) does is show what an amendment to a term-limit provision looks like. It defines such an amendment as one whose effect “is to extend the length of time that a person may hold or occupy office …”. Now, it is plain that an amendment that raises the retirement age has the effect of extending the length of time that a person may hold or occupy office. This is what Amendment No. 2 has done. It has extended the length of time that a judge of the Supreme Court or Constitutional Court may hold or occupy office. There can be no doubt that it qualifies as a change to a term-limit provision regulated by the strict terms of section 328. That being the case, it should have gone to a referendum since it is designed to benefit incumbent judges.

Moral Hazard: Conflict of Interest

But let us assume that there is merit to the contrary view, namely that it is not a term-limit provision. This means we have two contrary views that must be resolved. The question is who has the mandate to resolve such a dispute? Ultimately, since it is a constitutional provision, it must end up at the Constitutional Court. But this is where things get entangled. This is a provision that benefits judges of the Constitutional Court, but any dispute over its validity must be resolved by … the same judges of the Constitutional Court! This presents a serious conflict of interest. It means they become referees in a matter in which they have a direct interest. This brings us back to section 328(7) because this is precisely what it sought to avoid.

When framing section 328(7), the framers understood the problem that arises when persons that are in office stand to benefit from the extension of their time in office. The mischief they identified was that current officeholders have an incentive to remain in office for a longer period. To eliminate this incentive, the framers of the Constitution decided that current officeholders should not benefit from any changes to provisions limiting their time in office the effect of which would be to lengthen it. Note that if the change was to shorten their time in office, it would lawfully affect current office holders. The prohibition is only when the change seeks to lengthen a current officeholder’s time in office.

If the framers of the Constitution did not want current officeholders to benefit from such a change to the term-limit provision, it would not make sense for current officeholders who will potentially benefit from the changes to have a role in deciding the constitutionality of such changes. This is the reason why, as current officeholders who stand to benefit from the change to the term-limit provision, judges of the Constitutional Court and the Supreme Court are not able to sit in judgment of the legality of these provisions properly and lawfully. They are seriously conflicted.

There is, of course, some sympathy for these judges because they did not place themselves in that conflicted position. Instead, they were thrust into that invidious position by the government when it forced through Amendment No. 2. Section 328(7) prevents them from benefiting from Amendment No. 2, but they have a role as judges of the Constitutional Court to determine its legality. The conflict that any decision they make in favour of the amendment will be tainted by perceptions of personal interest and therefore, illegitimacy.

Risk Governance

The government could have saved the judges from this predicament by adopting a more risk-conscious approach to the amendment. If it had done so, it would have considered which option posed higher risks of litigation, which would inevitably place Constitutional Court judges in a conflicted position. The option that it mindlessly took has led to litigation with inevitable consequences for the judges. It should have avoided any path that might lead to litigation. A better option, if it really wanted current judges to benefit from extensions to the length of time that judges can be in office, was to take the amendment to a referendum.

That way, it is the citizens who would have decided whether to approve the extension of judicial terms. Judges would have been spared the trouble of sitting in judgment of a dispute in which they have an interest as beneficiaries of the amendment. The government still has an opportunity to correct this and spare judges the conflicted role which leads to illegality and illegitimacy. It can use the proper legal procedures to remove the provisions to start afresh. In future, the government needs to listen to criticism when it undertakes conduct that is illegal. If it had paid attention to criticism of Amendment No. 2, this constitutional conundrum could have been averted.

I should also mention, as I conclude, that while this piece has focused on Amendment No. 2, the other change in Amendment No. 1 is also highly problematic. As I have stated in previous BSRs, it is illegal because it violates section 147 of the Constitution. When the Senate passed the “Bill” in April, there was no Bill because it had lapsed (expired) in 2018 when the last Parliament was dissolved. This means provisions under which the current Acting Chief Justice was appointed remain illegal and her actions as Acting Chief Justice are therefore equally illegal. If the President appoints a new Chief Justice under Amendment No. 1, that will also be void on account of the illegality of that amendment. The cocktail of illegalities could easily have been avoided if the government took heed of the criticism and advice.     

As I stated in the BSR, I asked a mathematician colleague to help illustrate the effect of the constitutional clause that regulates the constitutional term of Constitutional Court judges to demonstrate the interaction between term-limit and the age-limit provisions as coterminous. Here is a demonstration of the mathematical situation:

Mathematical understanding of the constitutional clause

“186(1) Judges of the Constitutional Court can be appointed for a non-renewable term of not more than fifteen years, but – (a) they must retire earlier if they reach the age of seventy years”

In the language of linear programming, we say there are two constrains to the term of office of the cited judges:

To find what a given judge will serve, we need to consider the constraints jointly, not individually.

The short version of that clause will be:

Judges of the Constitutional Court can be appointed for a maximum 15-year non-renewable term subject to a 70-year age limit.

We then can plot graphs

For a judge who get to the bench young

This judge will be limited by term limit

For a judge who get to the bench at just the right time

This judge will be limited by both age and term limit

For a judge who gets to the bench late in terms of age

This judge will be limited by age

Linear programming model explaining “Term” of judges per Zimbabwe constitution.

(An additional mathematical version of the situation)

“186(1) Judges of the Constitutional Court can be appointed for a non-renewable term of not more than fifteen years, but – (a) they must retire earlier if they reach the age of seventy years”

It is clear from the above that maximum “service period” of 15 years and “age limit” are mutually inclusive. This means both conditions should be met in defining a term applicable to an individual. For example, if you ask a judge who is 65 years old when he is appointed how long their term will be, they would say “my term will be 5 years” – taking into account age limit when they turn 70. They would not say my term will be 15 years. This is because once they say 15 years, they would then say “if age limit is adjusted”. This clearly would mean the “5-year term” earlier mentioned is now being changed by a change of a variable and such variable is age limit and clearly shows it has an impact to the term.

Using Linear programming’s simplex method,  by George Dantzig, we plot the above conditions into a linear program that shows the conditions that provides a graphical definition of the “Term” as prescribed by the constriction.

Let X = Prescribed Age range (greater than 40 years and less than 70 years)

Let Y = Service length (15 years maximum)

From the above; 40 < X < 70 AND Y<15

The above conditions can be plotted on a graph that will visually show what the constitution says about the judges. The field in the graph that satisfies these conditions is called a “Feasible region” and this is the definition of the term. The feasible region can be shifted by either changing age limits or “service period” limits.

On the attached tables, exhibit 1 shows the current constitution feasible region. The yellow highlighted region shows the region that defines the term. Exhibit 2 is an example where the age limit is shifted from 70 to 75. It can be observed that the feasible region shifts by an area of 45 square units (5×15) which is a shift of the term (which is a function of age and service period).

The lines bordering the feasible regions represent the inequalities (equations) above and can be seen labelled as such. Regions shaded out represents regions that do NOT meet the required conditions.

In conclusion, since the feasible region in a linear program represents a situation where all conditions are met, changing any condition changes the feasible region. Similarly, the feasible region represents a definition of “Term” as in the Zimbabwe constitution hence any change that shifts the region in any directions represents a change in “term”.