BSR: The Chief Justice Who Refuses to Go

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The problem of clinging on to office used to be a monopoly of politicians. Zimbabwe’s Chief Justice has challenged and eclipsed the politicians. Chief Justice Malaba celebrates his 70th birthday on 15th May 2021. The birthday had an added significance: it was also going to mark the end of his tenure as a judge under Zimbabwe’s Constitution. A provision of the Constitution that was adopted in 2013 made 70 years the maximum age of retirement for all judges.

A lot of Zimbabweans had taken an interest in the Chief Justice’s birthday. But this was not because they were wishing him well. Rather, they were looking forward to his departure. His short reign as head of Zimbabwe’s judiciary has been remarkably controversial. Apart from sanitizing the coup that toppled Robert Mugabe from power in November 2017, he presided over the highly controversial presidential election challenge following the 2018 elections.

On 11th May 2021, the Office of the President delivered a much-awaited letter to the Chief Justice. The President “has considered your election to continue in the office of Chief Justice beyond the age of seventy years for an additional five (5) years … I am pleased to advise you that … the President has accepted your election to continue in the office of Chief Justice …”, stated the letter from Dr. Misheck Sibanda, Chief Secretary to the President and Cabinet.

The letter was sweet music to the Chief Justice. The clock had been ticking relentlessly towards retirement. But by the stroke of a pen, the President had granted him a new lease of life at the helm of Zimbabwe’s judiciary.

The change came after a choreographed but controversial plan to change the country’s Constitution. Constitutional Amendment No. 2 was passed by the Senate on Tuesday 4th May 2021. Just 3 days later, it was gazetted showing that it had received presidential assent in terms of which it became law. Amendment No. 2 changed the mandatory retirement age from 70, extending it to 75 in the case of judges of the Supreme Court and the Constitutional Court. It is this provision that breathed new life into Chief Justice Malaba’s career, just a few days before it was set to expire.

The amendment is controversial and has attracted serious criticism from many quarters and has created opportunities for a constitutional crisis. One of the criticisms is that the extension of the retirement age to benefit a sitting Chief Justice without going to a referendum breaches the Constitution. A provision of the Constitution prevents sitting officeholders from benefitting from a change to a term limit provision. On that basis, Chief Justice Malaba was not supposed to benefit from the extension of the judicial retirement age because that is equivalent to extending a term limit provision.

Ordinarily, the notion of mandatory retirement age might seem like a mere age limit, not a term limit. However, a term limit provision is specifically defined by the Constitution. Section 328 defines a term limit provision as “a provision of the Constitution which limits the length of time that a person may hold or occupy a public office”. To the extent that the provision for a maximum retirement age limited the length of time that a person could hold office, it qualifies as a term limit provision.

If there was any doubt, it is settled by section 328(7) 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 to any person who held or occupied that office, or an equivalent office, at any time before the amendment”. One might argue that there is nothing wrong with changing the retirement age of judges. What is wrong though is to allow it to benefit a sitting officeholder at the time of the amendment without going to a referendum because that would be a disguised amendment of section 328(7) of the Constitution. To the extent that Chief Justice Malaba’s term has been extended without going through a referendum – illegality, his future reign will be illegal. It should have been approved by citizens through a referendum. It has not been so approved – there has been no referendum and therefore, it is illegal. It is that simple.

The second ground of criticism is that the amendment has been done in violation of another provision of the Constitution which requires public consultation following the gazetting of a Constitutional Bill for at least 90 days. Section 328(3) of the Constitution requires the Speaker of the National Assembly to give at least ninety days’ notice of “the precise terms of the Bill”. The key phrase in this regard is “precise terms” because this has implications where the terms of the Bill are significantly changed during the parliamentary proceedings long after the end of the public consultation period. The contention is that the “precise terms” of Amendment No. 2 were changed quite significantly during parliamentary proceedings so that the Bill that was passed by Parliament was significantly different from the Bill that was presented to the public for consultations. This means Amendment No. 2 circumvented and violated sections 328(3) and (4) of the Constitution.

The difference between the original Constitutional Bill and what Parliament passed is palpable. While the original Bill permitted a judge to extend his or her term after reaching the age of 70, he or she could only get a one-year extension depending on a certificate of medical fitness and the President’s consent.

The Amendment Act that was signed by President Mnangagwa states that a judge who has reached 70 can extend his or her term for another 5 years depending on a certificate of medical fitness and the President’s consent. The major difference here is that the final bill that was passed by Parliament and approved by the President gives a guaranteed 5-year extension whereas, under the Bill, the extension was only for one year, renewable on an annual basis.

This was a significant change from the Bill that was presented to the public and the Bill that was passed by Parliament. Legally, the new and significantly different term should have been subjected to the 90-day notice and public consultation required by sections 328(3) and (4) of the Constitution. The fact that this was not done renders the provision illegal.

One might have thought with these illegalities, the Chief Justice would smell the odour that would come with an extension to his term of office. He did not take notice. He did not care, because all that mattered to him was retaining office regardless of the Constitution which by his oath he is sworn to uphold and defend.

The game had been played long before the amendment was passed. President Mnangagwa was sure to make it clear twice in the letter that it was he, the Chief Justice, who had elected to remain in office for another 5 years. It is not unusual for constitutional provisions to be named after the individual whose conduct prompted the amendment.

It might be that the provision was crafted to prevent certain conduct associated with an individual or to benefit an individual. This amendment is set to go down in history as the “Malaba clause” because it was crafted specifically to benefit him. He wanted to remain in office and Mnangagwa delivered the extension. This explains the rush to pass the Bill in Parliament and to give it presidential assent just a week before the Chief Justice’s birthday.

But as the saying goes, there is no free lunch. Mnangagwa did not just gift the Chief Justice with an extension of his term of office. One view may be that it was Mnangagwa repaying a debt to Malaba following favourable judgments during the coup and after the 2018 presidential elections.

Another is that he is now more beholden to Mnangagwa. He is now in Mnangagwa’s debt, having been granted 5 more years at the helm of the judiciary. But as with any debts, they must be repaid-with interest. Mnangagwa certainly has future political and legal controversies in mind. He wants an ally at the head of the third arm of the state.

The Constitution gives power to the Constitutional Court to make the final decision regarding the legality of a presidential election. If there should be a dispute in 2023, Mnangagwa wants someone he can rely on and no better than a man in his debt.

This raises questions over the situation of the Judge President, George Chiweshe. Surely, he must feel snubbed. 5 years ago, he thought it was his turn to succeed Chidyausiku, but he lost out to Malaba. When they attempt to stop the judicial interviews flopped, Chiweshe withdrew from the process.

Having lost out then, he would have been looking forward to his opportunity when Malaba reached 70. He did not even participate in the judicial interviews for the role of Constitutional Court judge last year. He might have been angling for a direct appointment by the President under Amendment No. 1. But now it has slipped away again, with Malaba retaining office for another 5 years.

Chiweshe’s chance might never arrive. Now there are whispers that a senior judge will be given a diplomatic posting, although it is unclear that he is the candidate. Mnangagwa has perfected the art of shipping difficult lieutenants to diplomatic postings far away to cause any trouble at home.

The tension between the Chief Justice and the Judge President is evident in the ongoing legal drama over the constitutional amendments. The Judicial Service Commission which is representing the Chief Justice and other judges who are being sued has raised questions over the role of the Judge President in the matter. It says that the Judge President should not be the one selecting judges for the hearing of the constitutional dispute because he is conflicted. It is challenging why the Judge President has not been sued along with other senior judges as he sometimes sits in the Supreme Court.

The JSC says the omission of the Judge President “… creates a suspicion and a perception that the bench appointed to hear the matter may be tainted with bias having been appointed by the Judge President who is not also a respondent in the matter.” These are strong accusatory words against the Judge President. It is astounding that the body which represents judges and must defend judicial independence should be casting aspersions on one of its senior members. Even after this controversy is over, relations between the two men are likely to be characterized by tension and friction.

As for Mnangagwa and Malaba, the apparent alliance between the two men is a remarkable turn of fortunes in a relationship that seemed uneasy just 5 years ago. Back in 2016, when the then Deputy Chief Justice was vying to succeed Chief Justice Chidyausiku, who was retiring, Mnangagwa seemed to be working so hard to stand in his way.

There was a tussle between the Chief Justice’s office and the Minister of Justice, Legal and Parliamentary Affairs which resulted in the former being sent on leave towards his retirement. Mnangagwa was the Justice Minister. Eventually, Chief Justice Chidyausiku prevailed and returned to work whereupon he commenced the process of choosing his next successor.

At the time, candidates for the role of Chief Justice were subjected to a rigorous public interviewing process. Mnangagwa began to push an amendment of the Constitution just when Chidyausiku started the judicial appointments process. A litigant was sponsored to block the judicial appointments process, pending the passage of the amendment. Chidyausiku stood his ground and prevailed again. Ironically, Malaba was the beneficiary of that insistence on principle, performing very well in the public interviews so that it was futile to block him.

At the time, it was widely thought Mnangagwa’s favoured choice was the Judge President, George Chiweshe. That might have been a deception, but the efforts to which the Mnangagwa faction went to stop the judicial interviews suggested sinister motives. In any event, Chief Justice Malaba seems to have found favour with Mnangagwa, especially after condoning the coup which was a blatant violation of the constitutional order. The handling of the presidential petition could only have confirmed that he was a worthy ally who could be relied upon.

Zimbabwe has had some bright lights of honour at senior levels of the judiciary. 60 years ago, Sir Robert Tredgold resigned as Chief Justice of the Federation of Rhodesia and Nyasaland after the government had issued the notorious Law and Order (Maintenance) Bill. “The Bill outrages almost every basic human right and is, in addition, an unwarranted invasion by the Executive of the sphere of the Courts. These are the custodians of individual rights and are my special responsibility,” said Sir Tredgold when quitting his job based on principle. He was a man of remarkable scruples to give up the privileges and benefits of high office in protest at draconian legislation.

The iconic courthouse in Bulawayo is named after Sir Tredgold. Based on this stance, it is highly unlikely that he would have accepted to remain in office on the grounds of an amendment that violated the Constitution.

Chief Justice Tredgold was not the only judge to take a principled stand against draconian legislation. Before the end of the sixties, two more judges walked the same path of principle. Justices Fieldsend and Dendy Young resigned in protest in the wake of a constitutional crisis caused by the unilateral declaration of independence (UDI) in 1965. UDI had essentially toppled the existing constitutional order and it was the judges who had to interpret the legality of what had happened. This came up in some of the most important litigation that has ever been handled by our country’s courts.

The world-famous case of Madzimbamuto v Lardner-Burke dealt with the legality of the actions of the UDI government. In a related case, three black men convicted of murder had been sentenced to death. However, Her Majesty the Queen acting on the advice of the British government had exercised the prerogative of mercy saving them from the hangman’s noose. The UDI government disobeyed the royal prerogative. This clash over who had lawful authority in Rhodesia was tested in the Rhodesian courts. The majority of the court ruled that although illegal the acts of the UDI regime had to be obeyed because it was in effective charge of the country. Most of the judges had succumbed to the wishes of the executive. The three men were executed. This was the last straw for Justice Fieldsend, realizing that the law was no longer able to safeguard citizens. The other judge who also walked away, giving up his privileges as a matter of principle was Justice Dendy Young, who served in the Bulawayo High Court.

The principled stand taken by Fieldsend did not go without recognition. When Zimbabwe gained independence, the new democratic government led by Robert Mugabe remembered his principled approach during the constitutional crisis and invited him. He became the first substantive Chief Justice of the newly independent country, a reward for his courage and moral scruples. As recounted by his obituarist after his death in 2017, “Sir John Fieldsend left behind in Zimbabwe the memory and example of an independent judiciary of strength and integrity.” The story of Chief Justice Fieldsend and what happened during the UDI-inspired constitutional crisis is recorded in this old BSR.

When Chief Justice Chidyausiku was reaching retirement age, he did the honourable thing and began to prepare for his successor. Ironically, that successor was Chief Justice Malaba. Many people hoped that he would bring a new culture of constitutionalism, respect for the rule of law, and dignity to the judiciary which had become too politicized. However, these hopes were misplaced. Chief Justice Malaba’s leadership of the judiciary has left more questions. Last year, he had to retract a directive that essentially reduced High Court judges to the status of students who had to submit their judgments to their superior before they issued them. This directive was vehemently resisted until he relented.

While judicial interviews must be robust, there is a view that he has publicly humiliated subordinates during some interviews. His refusal to leave at 70 also means subordinates must wait another 5 years, and there is no guarantee that this will not be changed again.

The great worry is that the extension of the Chief Justice’s term is part of a wider political scheme to safeguard Mnangagwa’s nest. He is turning all the key state institutions in his favour. This includes the Zimbabwe Electoral Commission, the Zimbabwe Anti-Corruption Commission which is compromised by his Gestapo outfit called the Special Anti-Corruption Unit located in the belly of his presidential office. Amendment No. 2 has also given him powers to handpick the Prosecutor General. The extension of the Chief Justice term adds to the circle of political referees that he needs on his side as he prepares for the next elections. There will be payback time for the Chief Justice, with a significant amount of interest. There are likely to be more amendments in the future to strengthen Mnangagwa’s hold on power and to thwart political opponents.

It is embarrassing that the Chief Justice is extending his term in conditions of a constitutional crisis. Last week, the BSR explained conditions in which a constitutional crisis might arise. This week has dramatized the constitutional crisis with the litigation that was launched to challenge Amendment No. 2. The litigants had to go to the High Court because all the judges of the Supreme Court and the Constitutional Court are conflicted. They are conflicted because they are all beneficiaries of Amendment No. 2 and have an incentive to defend it since it raises their age of retirement. But now that the case is at the High Court, the Chief Justice and his fellow judges are uncomfortable with this situation.

They think the Judge President and the panel of judges that he selected are biased against them. They want them to be removed from the case and for another senior judge of the High Court to choose a different panel.

It is astounding that they do not see the double standards of their argument. They are being represented by the Judicial Service Commission, which is also supposed to be representing the interests of the judges whom they are accusing of bias. The JSC cannot choose one set of judges over the others because doing so is a selective application of its mandate which is unfairly discriminatory. Either the JSC stands in support of all judges involved or it remains quiet and let the matter play out.

But the crisis goes further: if there is to be an appeal after the decision of the High Court, to which court would it go? It cannot be heard by the judges of the Supreme Court or the Constitutional Court since they are conflicted. They are conflicted because they are parties to the case and because they have a direct interest in Amendment No. 2 since they are beneficiaries of the extension of judicial tenure.

The same fears of bias that the JSC and the judges are expressing would apply where an appeal is made against the High Court decision. This means there is an absence of an independent and impartial judicial forum to solve the dispute. It will be remembered that a constitutional crisis occurs when existing constitutional arrangements are no longer capable of providing a solution to a constitutional dispute.

As it is, therefore, the Chief Justice and his fellow judges fear that the High Court panel cannot be fair with them, but the applicants who are suing them fear that the judges of the Supreme Court and the Constitutional Court cannot be fair with them because they have an interest in the amendment. There can be no better illustration of the constitutional crisis. But this constitutional conundrum could have been easily prevented. It could have been avoided if the amendment had been submitted to a referendum as required by section 328(9) of the constitution. The citizens would have decided whether it was a good idea to raise the retirement age of judges from 70 to 75 years. This has three major advantages:

First, it is consistent with the fundamental constitutional principle that authority to govern, and judicial authority derives from the citizens.

Second, it would follow the special procedure of amending such a provision, avoiding the dispute over the legality of the amendment.

Finally, it would have insulated judges from having to preside over legal disputes in a matter where they have a direct interest. Instead, arrogance and stubbornness have led the country into this mess. That the Chief Justice sees nothing wrong with all this is disappointing. Ultimately, it is he who holds the key to put a stop to all this constitutional mess. He can walk away and join the league of judges who have placed the constitution ahead of their privileges and interests. He will not do that, but it would be the right thing to do. But perhaps he does not care anymore for his integrity and reputation. He arrived in the Chief Justice’s seat late in life and career and 4 years at the helm has not been enough for him.

Conclusion

The Malaba amendment should have been submitted to a referendum It is illegal because it was not submitted o a referendum. The purported amendment is therefore null and void. It is a disgrace that he elected to stay in office based on illegality. The fact that judges have been called upon to decide the illegality of the extension is also a disgrace. He could have gave saved the courts from the ignominy of deciding this issue by taking the decent route and walking away. Now junior judges have to decide the legality of his reign.

His predecessor took the decent route and saved the courts from this indignity. It used t be that the courts are the ones that have to decide the legality of politicians having to extend their stay in office. That the Chief Justice is the subject of this question is embarrassing and ignominious. Even if he stays, he has lost moral authority as head of the judiciary. How can he even retrain the executive when he fails to obey the highest law in the land? How does he even restrain his subordinates given the illegality of his extension of office? It is utterly farcical. The only hope is that his subordinates dare to save him from himself. The Kenyan precedent, where judges have told the President that he has violated the Constitution must work as an inspiration to Zimbabwean judges to safeguard and promote constitutionalism.

Dr Alex Magaisa holds a PhD in Law from University of Warwick in the U.K. He trained as a lawyer in Zimbabwe and the U.K and he currently teaches law at Kent Law School, the University of Kent. Alex has extensive experience in and knowledge of Zimbabwean law and politics. He has held positions which have given him a vantage view of Zimbabwean law and politics.