By Dr Masimba Mavaza | In every democratic space the Judiciary sits at the centre and live wire of the democratic experiment. The Judiciary have a constitutional function of execution of laws respectively. It is the backbone of the government because whenever there is a dispute between the Centre and State, between State and the citizens judiciary is the only organ which controls the disputes and passes judgment.
It is natural that wide powers should be given to the Courts so that they will maintain harmony and attain the objective set out in the constitution without bias. If the judges become partial or if they work under the influence of politicians, the whole system will paralyze. Role of Judiciary as the guardian-protector of the constitution and the fundamental rights of the people makes it more respectable than the other two organs.
There are various levels of judiciary in Zimbabwe– different types of courts, each with varying powers depending on the tier and jurisdiction bestowed upon them. They form a strict hierarchy of importance, in line with the order of the courts in which they sit, with the Constitutional court being the highest in the land. It is the highest, with the power of constitutional review. One of the major functions of the judiciary is to interpret (explain or clarify)and apply laws to specific cases. In the course of deciding the disputes that come before it, the judges interpret and apply laws.
Every law needs a proper interpretation for getting applied to every specific case. This function is performed by the judges.
We can safely say the judiciary is a strong and an important pillar of our democracy and proper governance. Among the three arms of government the judiciary is the most active and mostly undermined in its power of removing governments. On this basis every person or any government must respect the rulings even if they are not in our favour.
Many Zimbabweans have been disappointed by the High Court Ruling of Musa Kika vs the Justice Ministry. Being that as it may our comments is not directed to the persons of the judges who sat in the hearing but to the judgement. At the moment the ruling is now out and commenting on it is not contemptuous. We disagree with the court but we respect their wrong decision.
The three High Court judges, failed to make a distinction between a TERM LIMIT and an AGE LIMIT.
Constitution Amendment (No.2) Act does not extend the TERM LIMIT of judges of the superior courts. It merely extends the AGE LIMIT by allowing them to continue occupying judicial office for another 5 years after attaining the age of 70 subject to them providing medical proof that they are still in sound physical and mental health.
This, is the major weakness of the High Court judgment that was handed down on Saturday, May 15, 2021. A celebrated lawyer Mr Obert Gutu commented. “Because Constitution Amendment (No.2) Act does not extend the TERM LIMIT of judges of the superior courts, there is, therefore, no need to go to a referendum.
The term limit of Constitutional Court judges is limited to 15 years. CJ Luke Malaba had not yet served his 15 year term limit as a Constitutional Court judge and thus, his age limit could lawfully be extended to enable him to serve for another 5 year period, subject, of course, to the requirements of providing a medical certificate.” I do agree with Mr Gutu’s view point which he went on to say
“I’m absolutely convinced that the High Court judgment is challengeable in the Supreme Court with a significant degree of prospects of success of the appeal. Clearly, the High Court totally misdirected itself by failing to distinguish between a TERM LIMIT and an AGE LIMIT.”
We all must know that the government has a right to appeal this offending judgement. The government will definitely appeal against this judgement with dignity and honour and utmost respect of our judges where they deserve the respect.
It must be understood by the opposition and the activists that Zimbabwe aims to strengthen our judiciary and not to destroy it. Democracy is about peaceful and respectful contestation even if we have no common ground. Zimbabwe needs to be a country of strong institutions different in nature but together in purpose.
The case before the High court was where the applicants were challenging a part of the Constitutional Ammendment No 2 which sought to raise the retirement age of judges of the supreme court and the Constitutional Court from 70 to 75. The crux of their case was that the Change was unlawful as it did not comply with the requirements of section 328 of the Constitution. The major issue on 328 is that if you are changing the term limit provision, it should not benefit those who are already in office.. The lawyers argued that there should be a referendum in order to change the term.
The main question was whether the change amounts to the age limit. The High Court ruled that it was a change and it indeed infringed the rights. The court ruled that Amendment number 2 breaches the right to protection and benefit of the law. The court then forces the original term back on the constitution.
It should be understood that this decision by the High court can be appealed in law and will be appealed. Decisions of the High Court are subject to appeal to the Supreme Court. Furthermore the Constitutional court has the final say on matters which touch on the constitutionality of legislation and is required to confirm orders of constitutional invalidity that are made by a lower court. This means that nothing has changed by the judgement of the High Court.
The constitutional court will need to confirm this order. The biggest problem we have is at best the Judicial Crisis. How can a government operate with a Judiciary in opposition? How does a state function with opposition judges? Judges must be independent and not in opposition. The trend our judges are taking is dangerous and will render our country ungovernable. The government must stand up and defend our country. The judges have no power whatsoever to shoot down what the Parliament has voted for, let alone the High Court.
The procedures taken in this matter suggests a very heavy hand in the judiciary system. This shows that the JSC is working with enemies in gowns. The CJ Malaba was working with enemies all along and total problems.
Nobody can explain why there were three judges in the panel. This was a simple application which needed one judge. Did the High Court sit as a Constitutional Court? This is in itself an appealable way. The High court breached the due process. Why did Justice Zhou refuse to recuse himself in a case he had never had prior involvement in? There are so many Judges who would have stepped up in his place. After refusing to recuse himself he went on to chair the panel of three judges of the High Court. The High court made an error by even sitting in a matter which was dealing with the office of the chief justice. Despite that the three Judges were conflicted and had an axe to grind against the Chief Justice.
One wonders why the court was in such a hurry in dealing with this matter. There was need for a serious consideration of the recusal application, there was interest on Zhou who refused to give the case to someone even though his background was the cause of the application.
Furthermore the whole case ressembled a dog’s breakfast, who appointed Malaba, Why did they cite Malaba and the minister? Why not cite the president, the senate the parliament. The whole case stinks of total under hand and a serious mechinisation by those who are bent to see the president and his government removed.
Can someone explain why do these three judges have a view that they had a jurisdiction over this case? The declaration by these judges is not binding until confirmed by the constitutional court.
To heal this case in the absence of an appeal, the president has discretion of appointing retired judges to sit as judges. Malaba was re-appointed by the president and he should sit as a Chief Justice. His mandated ended on the 15th and his appointment starts on the 15th by the presidential discretion as allowed by the law and by the amendment the president has a constitutional power to re appoint a retired judge. Judges of the High Court cannot give a constitutional decision sitting as a High court. There was misdirection by the High Court; the court is shifting to a trend of Judicial Activism. This trend is going to haunt Zimbabwe if it is not corrected at this point.
The President has a way forward; He has to hire a retired judge to fill the gap. The Chief Justice legally is not dethroned; the declaration is not effective as it has not been confirmed by the Constitutional court. The judgement by these judges shows how hated Chief Justice Malaba is by the judges of the High Court. Their decision was a blow in the face of the CJ and an insult to the president of Zimbabwe. The High Court judges felt confident and bold to point a middle finger to the president and his government because they are supported by anger against CJ. This is enough to show that they are too conflicted.
The appeal will put Mlaba back into office pending the outcome of the case. So by noting the appeal tomorrow the game is on. The vindictiveness of the judges who sat is made clear by a judge who kept insisting on remaining in office especially after a recusal application has been lodged is obnoxious.
It should be noted that the judgement does not affect Amendment number 2, it is still valid as enacted law and the ruling of the high court does not debunked a constitutional amendment. it should be further noted that the high court was manifestly in error in rejecting the legality of the extension of the chief justice’s tenure of office. The act of parliament cannot be taken away in this manner. Since the case before the high court arose out of an act of parliament the high court ought to have referred the matter to a constitutional court which will have followed the due process of the law to constitute and un conflicted bench of the constitutional court to deal with this matter.
the honourable Justice Zhou compromised his dignity by clinging on to the case for the purpose of settling a score and this is abominable. There is a heavy underhand which made the claimants be the ones who control which judges are to be cited and which judges are to be left untouched. This was not by a mere coincident. The plan was to create judges who will sit against the amendment number 2 and disqualify other judges by conflicting them through a joinder. Surprising when the plan was found out and Zhou was requested to leave he refused to leave and he became the chair of the panel without any reason why?
The judges sat overnight which are a sign of a speed meant to reach their dark decision at night. These became night judges who brought a dark judgement from the dark corners. in order to obstruct the course of justice the judges have held on to the reasons of decision but rushing to give a summary which will not be enough to appeal against. This is only pointing to the broad belief that the judges are captured by the dark forces hence throwing a decision from the darkest hours of the night.
Zimbabwe is now descending in a situation where the judges have become political activists. The judges are breaching the doctrine of the separation of powers. It should be noted that section 328 of the constitution did not benefit anyone in o0ffice as it only amnded the extension of age . it did not change the retirement age. the extension will be done on given conditions thus there was never a change to the age and it did not need a referendum. It is through that the noise is from the opposition assisted by those in the judiciary.
When you see a judge you are seeing a history and a result of over a thousand years of legal evaluation. Zimbabwe system is based on its former colonisers and it is high time that it be changed. Judiciary must change and evolve to meet the needs of the society. and despite the oddities it is widely regarded as one of the best and yet it is still foreign.
Zimbabwe can never be said to be more democratic than America. Yet America changes the judiciary each time there is a new president. How can a country work without a conforming judiciary? In England the AG is changed when a new government comes into power. The Chief Justice is retired at the coming in of a new government. Why would Zimbabwe be afraid to change its laws?
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