BSR Special: Explaining the historic High Court judgment


The High Court of Zimbabwe today issued a historic judgment in which it declared that the Chief Justice ceased to hold office by operation of law notwithstanding attempts to extend his term of office. Former Chief Justice Luke Malaba had received what counted as a great birthday present when President Mnangagwa allowed him to stay in office for another 5 years. This followed a controversial change to the country’s constitution which raised the judicial age of retirement from 70 to 75 years. The former Chief Justice could not have imagined that it would turn into a nightmare on his 70th birthday. There have been many questions in the wake of the judgment and here I attempt to consolidate and answer the most common questions.

What was this case about?

They were two separate cases that were consolidated because they dealt with similar issues. In one case, the applicant was Musa Kika, who heads the Zimbabwe Human Rights NGO Forum, a coalition of civil society organizations operating in Zimbabwe. The second was filed by the Young Lawyers Association of Zimbabwe, represented by Emma Drury. This application also included Frederick Mutanda, a veteran of the liberation struggle.

Together the applicants were challenging a part of Constitutional Amendment No. 2 which sought to raise the retirement age of judges of the Supreme Court and the Constitutional Court from 70 to 75 years. The applicants argued that the change was unlawful because it did not comply with the requirements of section 328 of the Constitution. This is a provision that specifies a special procedure for changing the Constitution.

One of the requirements of section 328 is that if you are changing a term-limit provision, it should not benefit those who are already in office. The applicants argued that Amendment No. 2 changed a term limit provision and sought to benefit judges who were in office, including the Chief Justice. This could only be done if the change were submitted to a referendum where the citizens would approve according to section 328. But this had not happened.

The applicants argued that this illegality was a violation of their right to protection and benefit of the law which is guaranteed by the Constitution. The main issue on which everything rested was whether the provision regarding the maximum age limit of judges qualifies as a term limit provision under section 328. The court agreed with the applicants’ argument that it was a term-limit provision, and that the illegality of Amendment No. 2 infringed their right to the protection and benefit of the law. The court’s interpretation is correct. It is consistent with what we have always argued here at the BSR and has a firm basis in the definition provision of section 328.

The case drew so much interest because it was about defending the supreme law of the country, which was threatened by unlawful amendments. It was a reminder that the constitution cannot defend itself alone. It needs active citizens to stand up with courage to challenge threats to it. All this would be futile without brave judges who are prepared to defend the Constitution. The easiest thing for the judges to do would have been to go with the tide and support the regime’s machinations. They chose to defend the constitution.

What does the judgment say?

The full judgment is yet to be released and this is based on the order which was released. The effect of the judgment is that raising the retirement age of judges is an extension of a judicial term and it is illegal if it is not supported by a referendum. The illegality of Amendment No. 2 breaches the right to the protection and benefit of the law.

Having declared that changes were unlawfully done, the court declared that the original terms of the constitution regarding the retirement age of judges remain 70 years whereupon they must depart office by operation of law.

Based on this, the Court declared that the former Chief Justice Luke Malaba ceased to hold office at midnight on 15 May 2021, that being his 70th birthday. By way of clarity and emphasis, the court stated that anything done by Malaba after that time would be “null and void and of no effect”. This communicated a sense of finality to Malaba’s tenure as head of the judiciary.

This was quite a nasty birthday present for the former head of the judiciary. Having been used to sit in judgment of others or interrogating candidates at interviews, he was now the subject of a judgment. Last September, the former Chief Justice has bullied Justice Zhou when he interviewed for a vacancy at the Constitutional Court. Now it was Justice Zhou who chaired the panel to decide the fate of the former Chief Justice’s long career on the bench. It is not surprising that he was desperate to have Justice Zhou removed from the panel. But what is good for the goose must surely be good for the gander.

Can the decision be appealed?

Yes, this was a decision of the High Court which by its significance was handled by a panel of 3 judges. However, decisions of the High Court are subject to appeal to the Supreme Court.

In addition, the Constitutional Court has the final say concerning the constitutionality of legislation and is required to confirm orders of constitutional invalidity that are made by a lower court.

This means to the extent that the High Court invalidates Amendment No. 2 in its attempt to change judges’ retirement age, final authority rests with the Constitutional Court which must confirm the order. But this is where things begin to get a little messy, confirming the constitutional crisis that I have said is caused by these amendments. Let me explain.

All the judges of the Supreme Court and the Constitutional Court are cited in these proceedings, which means they have a direct role and interest in the case. The implication is that all the judges who must constitute a hearing panel either at the Supreme Court or the Constitutional Court are conflicted: they cannot sit in judgment of a case in which they are parties.

Therefore, while there will be an appeal and while the order requires confirmation of the Constitutional Court, none of the current judges are eligible to sit on the judicial panels at the Supreme Court and the Constitutional Court. Remember a constitutional crisis might occur when existing constitutional mechanisms are no longer capable of providing a solution to a dispute. Without a valid judicial panel at either superior court among the crop of current judges, another way must be found otherwise it is a cul-de-sac.
One approach would be to hire a current or retired judge to fill the gap. However, the legality of an entire judicial panel consisting of acting judges might be in question. Both section 166(2) and 168(2) provide that where there is a need for an additional judge for a limited period, the Chief Justice may appoint a judge or former judge to act as a judge for that period. However, the problem with this is that following the High Court ruling, there is currently no substantive Chief Justice.

But even if an Acting Chief Justice can appoint, the problem with the current one is that she is also conflicted because she is a litigant in the relevant legal proceedings. A player in the match cannot choose the referee because that would lead to bias, whether real or perceived. Therefore, as things stand, it is arguable that no one can properly and lawfully appoint members of a judicial panel, both at the Supreme Court and the Constitutional Court. They all have an interest in the matter.

In any event, section 166(1) which defines the Constitutional Court makes it mandatory that it must have a Chief Justice and the Deputy Chief Justice. With Malaba’s retirement, there is no Chief Justice and, as we have already observed, both Acting Chief Justice Elizabeth Gwaunza and Deputy Chief Justice Paddington Garwe are conflicted because they are cited as parties in the proceedings. Acting Chief Justice Gwaunza’s position is further complicated by another illegality which I will discuss shortly.
We can see the difficulty that I have referred to in recent weeks: there is a constitutional crisis when prevailing constitutional mechanisms are not able to successfully resolve a dispute. In this case, the chain of illegality is long and impossible to break.

What does this mean for former Chief Justice Malaba?

The main effect of the judgment is that he is no longer the Chief Justice of Zimbabwe. One of the major reasons for his collapse is that he had become a lame duck Chief Justice. The High Court judges felt confident to rule against him because his career was already hanging by a thread. Even the extension of his term last week was not enough to cover up the weaknesses that came with approaching retirement age. For the first time, he was not in control of the judges. The efforts to get the judges to recuse themselves revealed a desperate and insecure man who had lost control. Far intimidating the judges, it made them bolder because they realized his desperation.

The Judicial Service Commission has issued a statement indicating that there is going to be an appeal. However, as I have sketched out above, the validity of an appeal is in serious doubt because of the complications surrounding the constitution of judicial panels both at the Supreme Court and the Constitutional Court. This is because all the judges of those courts are conflicted as they have a direct interest not only in the proceedings but also in Amendment No. 2 which makes them potential beneficiaries of the increase in the retirement age.

The former Chief Justice has a choice to keep fighting or to let it go and enjoy his retirement. He should preserve whatever remains of his dignity and legacy by walking away with a modicum of honour. The picture of a judge insisting on remaining in office, especially after a panel of judicial peers have ruled that it offends the constitution is unedifying.

He has had a long judicial career and while many critics remember and judge him by the handling of the 2018 presidential petition, he has had some great cases in his judicial portfolio. One of his better judgments came as a dissenting opinion in the case where Jealousy Mawarire took legal action to compel former President Robert Mugabe to fix dates for the 2013 elections. It was, in my opinion, the correct opinion although he was in the minority.

Rather than continue fighting, it is time to sail into the sunset. This judgment has dealt a huge blow to his moral authority. Now devoid of the accoutrements of office, he will find himself with very few friends and allies. Certainly, those that know-towed on account of fear will feel liberated and no longer willing to pledge their allegiances. As they say, success has many fathers, but on the other hand, failure is an orphan.

How does the judgment affect Amendment No. 2?

As I have already stated, the cases were challenging an aspect of Amendment No 2, namely the legality of provisions raising the retirement age from 70 to 75 years. Amendment No. 2 is, however, broader than the issue of judges’ retirement age. There were more than 25 amendments. The judgment does not affect the other issues. They are still valid and enforceable because all enacted laws enjoy a presumption of constitutionality until this is debunked.

Some might ask why the other issues were not challenged so that the entire Amendment No. 2 could be invalidated. The answer lies in the rules of procedure. Litigation is a highly technical exercise and is governed by strict rules of procedure. You do not simply approach the courts with an urgent application. When it is urgent, it is given priority by the courts, whereas most cases are allocated on the ordinary roll, which can take months and sometimes years to resolve. But the law recognizes that there are some situations where the matter cannot wait and must be dealt with on an urgent basis.

Therefore, to qualify for this special privilege, you must demonstrate that the issue is urgent and warrants the court’s attention on an urgent basis. Not all issues that are covered in Amendment No. 2 qualify as urgent. The one truly urgent issue concerned the retirement of the Chief Justice which was imminent because his 70th birthday was just days away. Hence the focus on that issue in these two cases.

The lawyers also had to link the case to the declaration of rights hence the reliance on the argument that the illegality of the amendment violates the right to protection and benefit of the law. The long and short of it is that they could not have challenged the whole of Amendment No. 2 because they would have struggled to justify that everything was urgent. The respondents would have had a field day arguing that it was not an urgent matter, and it might have been thrown out on that technicality. Therefore, the cases were narrowly focussed on the urgent issue of the illegality of extending the retirement age and therefore extension of judicial terms.

However, I should point out that apart from these two cases, I am aware of other cases that are challenging the legality of both Amendment No. 1 and Amendment No. 2. These cases are more comprehensive and will cover more ground seeking the invalidation of these amendments. If they are not heard on an urgent basis, they will certainly be dealt with soon and if successful, they will lead to the invalidation of the amendments. These two cases which were dealt with in this judgment should therefore be considered as battles in a war that is being fought on multiple fronts and from different angles.

So, how is the new Chief Justice going to be appointed?

The invalidation of the extension of former Chief Justice Malaba’s term means there is now a vacancy in the office of the Chief Justice. So how is this vacancy going to be filled? It will be a dereliction of duty if the government waited for the appeal before dealing with this important issue. The Constitutional Court has already operated for a year without substantive judges apart from the Chief Justice who is now no longer in office. It is simply untenable that the superior court in the third arm of the state should remain constituted by acting judges.

But once you embark on appointing judges of the Constitutional Court and consequently the Supreme Court, you must deal with the urgent issue of the head of the judiciary. The Malaba chapter is over. There is no need to force it. The High Court judgment has dealt a heavy blow on his standing and reputation which will be hard to repair. He has lost moral authority among his peers and subordinates. One might say he is now a liability.

Let us now look at the laws for filling in the Chief Justice vacancy and here there is another serious question mark. Amendment No. 1 changed the procedure for appointing the Chief Justice, Deputy Chief Justice, and the Judge President so that they are now directly appointed by the President after consulting the Judicial Services Commission. The President can solicit the views of the JSC, but he has no obligation to follow those views, which is why Amendment No. 1 has been criticized for increasing the power and influence of the President in the composition of the judiciary’s leadership.

Before Amendment No. 1 all judges were appointed after a rigorous public interviewing process. This is how former Chief Justice Malaba came into the office 4 years ago. Amendment No. 2 built on the first amendment by giving more power to the President to directly appoint judges of the Supreme Court and the Constitutional Court from among the pool of serving judges without the need for public interviews. If this system is used, it means President Mnangagwa has a large discretion over whom he appoints. It cannot be the former Chief Justice Malaba because he is already 70 years old. But it could be someone worse. There is certainly no guarantee that President Mnangagwa will appoint someone better than former Chief Justice Malaba. If that happens, it will have been a case of one step forward and three steps backward. Nevertheless, there is a problem with both amendments which means they are ripe for legal challenges.

In the case of Amendment No. 1, the Senate recently passed, but this violated section 147 of the Constitution. Amendment No. 1 had already been passed by the 8th Parliament and signed into law by then-President Robert Mugabe in 2017. It was successfully challenged at the Constitutional Court because it violated the special procedure for amending the constitution. However, the court suspended the order for some time so that Parliament could correct the error. However, this was misinformed and erroneous. The constitutional bill had lapsed in 2018 when the 8th Parliament was dissolved by operation of law. The 9th Parliament which was elected in 2018 had no authority to pass a non-existent constitutional bill. Parliament had no duty to carry out an unconstitutional order. In any event, the court order did not cure the illegality. This is one of the grounds upon which Amendment No. 1 is being challenged.

This means if the President appoints a Chief Justice under Amendment No. 1, which might later be declared invalid, that appointment will also be invalid. This is where the issue of Acting Chief Justice Gwaunza comes in. She was appointed the Deputy Chief Justice in 2017, after Amendment No. 1 was passed, and before it was declared invalid by the Constitutional Court. If Amendment No. 1 is declared illegal for violating section 147 of the constitution, this will render her appointment illegal once again. I raise these issues to demonstrate the cocktail of illegalities under these amendments which is a sign of incompetence. These illegalities are entirely avoidable if only the Ministry of Justice, Legal and Parliamentary Affairs is faithful to the constitution and the law.

What is the government’s reaction to the judgment?

The response of the government has been as predictable as darkness follows sunset. It is not pleased with all with the judgment and even that is an understatement. The Judicial Services Commission was the first to respond earlier during the day. Its statement was more measured than the Minister of Justice, Legal and Parliamentary Affairs. The regime is wounded. After feigning respect for the rule of law, Ziyambi launched a frontal attack on the High Court judges calling them “a night court, consisting of night judges”, which unoriginal and plagiarised.

The main attack was aimed at Justice Zhou, whom the government and the JSC had specifically demanded that he recuse himself from the case. The application for recusal was dismissed. Ironically, Ziyambi accuses Justice Zhou of being conflicted, and yet in the same statement wants to appeal to the Supreme Court which consists of judges who are conflicted because they are litigants in these proceedings. Those judges have no right to sit in judgment of a case in which they are involved. It is Ziyambi’s attack on Justice Chiweshe that might cause more tension. It reveals the tensions at the heart of the regime. This is not just an attack on Chiweshe but perceived political allies in what is turning out to be a bitter and increasingly hot factional battle.

Ziyambi also goes after lawyers, human rights defenders, and litigants, accusing them of pandering to and advancing the interests of hostile foreign governments. These are not new claims notwithstanding their baselessness. “The time may now have come to expose all these malcontents and economic saboteurs who are not sleeping until they bring down the second republic. We are now going to poke the enemy in the eye and confront it,” writes Ziyambi in his incendiary statement. Without a hint of irony, Ziyambi accuses the judiciary of being “captured”, basically flipping the argument that is often used against ZANU PF. When he talks of the time has come “to look at the transformation of the Judiciary”, Ziyambi is threatening the removal of judges, replacing them with pliable characters. There is reason to be concerned for the safety of Justice Zhou in particular.

The attack on the judiciary and lawyers is deplorable but why is Ziyambi so angry? Ziyambi is covering up for incompetence in his office. The fit of anger is a desperate attempt to draw attention from himself, panting a horror picture of enemies of the regime everywhere. But this mess is his creation. He is the one who has pushed these unlawful amendments, refusing to listen to reason because of the arrogance of power. He has been haughty, silencing MPs, Senators, and critics. He has also exposed a poor grasp of the law and the Constitution. The errors are elementary and could have been avoided. He is trying too hard to sound tough, frothing at the mouth and spraying bullets in every direction, in a desperate effort to find a target. But this is his mess. He must explain to his boss why he pressed on with illegal amendments. As I have stated, both amendments are illegal and would not survive the scrutiny of an impartial court.

But he is also exposing the true character of the regime. It is insecure and paranoid. It has a disposition for using force. Despite the false attempts to present a picture of tolerance, it is extremely intolerant. It only tolerates those that toe the government line. Ziyambi’s statement poses a challenge to the Judicial Service Commission. So far it has been an ally of the Minister as they sought to defend the illegal amendments. The JSC’s intervention was based on the ground that it had an interest in representing and defending its “employees”, namely the Constitutional Court and Supreme Court judges. But now it’s “employees” who presided over the case are under an inflammatory attack, will the JSC come to their defense? It has a constitutional obligation to protect judicial independence, which is under serious attack from the government. It must publicly defend the judges, or it is a clear dereliction of duty.

On the broader front, judges must collectively fight this attack. An attack on the few is an attack on all of them. No one will be spared. This is also a good time to raise the matter with regional peers. Civil society, human rights defenders, and professional bodies like the Law Society of Zimbabwe must also mobilize and get together to show solidarity to the persecuted judges and to defend judicial independence. The judiciary was already imperilled, but things are likely to get worse. Only the citizens can stand up to the bullying and refuse to be cowed into submission. Ziyambi thinks he is being tough on critics, but his statement has done more damage to the regime’s reputation. If anyone was in any doubt about the intolerant and authoritarian nature of the regime, the statement exposes the darkness at the centre of its heart.

What does this case mean for Zimbabwe’s judiciary?

There is a temptation to be optimistic but while it is important to savour the moment, it is important to remember that it is just one case. There would have to be a consistent line of similar cases before we can start to develop a sense of optimism. I am interested in how the judiciary responds to the open threats from the Justice Minister. If ever there was a moment for judges to stand together, this is an important one. If they fold, they will never recover their independence. The judiciary is the last line of defence for the Constitution and the citizens and citizens need to demonstrate solidarity with the judges who are under severe attack.