PREPARE FOR REFERENDUM.
By Brian Mari | I was watching the proceedings of the constitutional court very carefully. I am interested in it right from beginning.
I must be honest. I was impressed by presence and presentation by advocate Eric Matinenga.
I was pleased to see his grey hair. Sign of wisdom. He knew for certain that these captured judges would never recuse themselves in a matter they are conflicted.
Instead of fighting to win the recusal he changed the fight to one of having the judges make some pronouncements they cannot change when the matter progress.
As far as possible stretch the judges pronounce their interests. Nothing presented was going to change their pre determined verdict on whether to recuse themselves or not.
Without realising, the judges have made very important pronouncements that Advocate Matinenga wanted very much. I thank him for that.
That is to say, they cannot recuse themselves because there is no one with judicial authority to remain after their recusal.
They also admitted that a Chief Justice is the one who can appoint acting Judges. More important from Justice Patel is that Judges do not give themselves authority.
These are the crucial points that will hang the judges and remove them from the stolen bench.
Pleasing to note that this application was brought by a Zanu pf member. It is assumed he was send to rescue judges of country.
Instead these Judges have committed a crime and not just a mere breach of constitution. Rather it is intentional crime committed.
Here is why Eric Matinenga and Musa Kika would lift us to glory.
The High Court record still hold an order that say the listed Judges cannot benefit from section 186 as amended.
Whether one wants to pursue Luke Malaba or Elizabeth Gwaunza or Garwe or Patel or any from the list, it does not matter. The process here suggested is the same and directed to each individual.
As long as the record has list of judges who are listed by name the High Court record is the sole legal document that will stand until referendum. It reads “Disposition. ln the result, we make the following order:
IT IS DECLARED THAT:
1. The second respondent in HC 2128/21 who is also the second respondent in HC 2166121 ceased to hold the office of the Chief Justice of Zimbabwe and judge by operation of law on I5 May 2021 at 0400 hours.
2. The extension of the length of time in the office of the judge beyond the age of 70 years provided for in section 186 of the constitution does not apply to the second to fourteenth and the eighteenth respondents.
3. There shall be no order as to costs.”
While the debate is focused on retirement age, however for one to fully debate this issue, you need to direct attention to section 186 as relating to Judges of Constitutional Court and then direct attention in relation to Supreme Court Judges.
Take note that to say Judge of Constitutional Court does not mean the name of a person. Just as it is to say Chief Justice.
However when a name is mentioned in relationship to the office it mean we are referring to personal interests of the named person in relation to the office.
For now I only need to look at the amended s186(2) which relate to Judges of Constitutional Court.
It reads: “Subsection 2. The Judges of the Constitutional Court are appointed for a non-renewable term of not more than 15 years but they must retire earlier if they reach the age of 70 years unless before they attain that age they elect to continue in office for an additional five years provided that such election shall be subject to the submission to and acceptance by the president after consultation with Judicial Service Commission of a medical report as to the mental or physical fitness of the Judge so to continue in office.”
If a person is seeing benefit or the non applicability of the amendment on the present judges only in relationship to time in office then you miss the point.
This section talks about being appointed as a Judge of Constitutional court for a non renewable term of 15 years
Before one argues on retiring of those same judges at 70 years or extending their tenure to 75, the first point is “do the listed Judges qualify to be appointed as constitutional court Judges for a non renewable term”?
Rather, as of 15 May 2021 was any of these Judges on a term of 15 year in office of Judge of Constitutional Court?
That is the first benefit which by the date when the High Court application was made, these judges would get by the amendment number 186 before we even get to talk about their retirements.
You do not talk about extending a term that you are not yet appointed to.
While Musa Kika could have brought these things direct to the listed judges during first hearing, the fact that the judges chose not to participate also left issues relating to them without any need to open them up. Focus was left to single benefit of retirement as was opposed by the Judicial Service Commission and Minister of Justice.
Now that they have chosen to hear the matter then section 186(3)(e) must be invoked. “No law can limit the right to fair trial”. This is coming from the constitution itself. Either way these listed judges who also make up “the bench” are going to respond to all the facts related to these points. It is unfortunate that they chose to respond to them in the shoes of judges.
Never the less, they are duty bound to accord the respondents their full right to fair trial.
What is the first call? The first call is to identify each judge listed in the record, each by name and Surname. Put on each one of them, the date when they assumed office as at 15 May 2021. Put date of birth of each of them.
Then hold your constitution on your right. Then talk with names of individuals and prove that it is not mere citation of these judges but it is the unique information in each of the judges which after summarising these facts below, then the same verdict is reached.
No one can answer on behalf of each of the Judges beside themselves. Even the ones making up the bench. Each has individual data that make him or her disqualified from benefitting from section 186.
The point is to prove that “The second respondent in HC 2128/21 (Luke Malaba) who is also the second respondent in HC 2166121 ceased to hold the office of the Chief Justice of Zimbabwe and judge by operation of law on I5 May 2021 at 0400 hours.
2. The extension of the length of time in the office of the judge beyond the age of 70 years provided for in section 186 of the constitution does not apply to the second to fourteenth and the eighteenth respondent”
The judgement specified the individuals as listed. No judgement can avoid this. The reason for not extending the tenure beyond 70 may be numerous but one fact remains. You extend your own individual tenure in your personal record.
You do not extent tenure in the constitution then assume it relates to you. It is like conflating public office to individuals.
Lets go.
Go to section 13 of sixth Schedule and read this clause:
“ Existing officers 13. Any person who, immediately before the effective date, held or acted in a public office under the former Constitution continues to hold or act in that office, or the equivalent office under this Constitution, on the same conditions of service until the expiry of his or her term of office under those conditions of service or until he or she resigns, retires or is removed from office in terms of this Constitution or those conditions of service, as the case may be.”
Now by checking from each of the listed judges’ date of appointments on the posts of Supreme Court Judges, which is the post all of them held on date of publication of 2013 constitution, it must be proven that all the listed judges were Supreme Court Judges on this said date 21 May 2013.
After having proven that, then it must be clear to everyone that these listed judges, Malaba included are serving not on a tenure and conditions of service as of section 186 of 2013 constitution. Amended or not amended.
These Judges are serving a tenure as prescribed by old constitution section 86. Amending or not amending 2013 constitution does not change the tenure and conditions service of these judges.
The section 86 of old constitution reads as follows “86 Tenure of office of judges (1) Subject to the provisions of section 87, a judge of the Supreme Court or the High Court shall retire when he attains the age of sixty-five years unless, before he attains that age, he has elected to retire on attaining the age of seventy years:
Provided that— (a) an election under this subsection shall be subject to the submission to, and acceptance by, the President, after consultation with the Judicial Service Commission, of a medical report as to the mental and physical fitness of the judge so to continue in office;
(b) the provisions of this subsection shall not apply to an acting judge or a judge who has been appointed for a fixed period of office;
[Subsection as amended by section 13 of Act 25 of 1981 – Amendment No. 2, by sections 3 and 7 of Act 4 of 1984 – Amendment No. 4 and by section 20 of Act 23 of 1987 – Amendment No. 7] (2) A judge of the Supreme Court or the High Court may at any time resign his office by notice in writing to the President. [Subsection as amended by section 13 of Act 25 of 1981 – Amendment No. 2] (3) The office of a judge of the Supreme Court or the High Court shall not, without his consent, be abolished during his tenure of office.
[Subsection as amended by section 13 of Act 25 of 1981 – Amendment No. 2] (4) A judge of the Supreme Court or the High Court may, notwithstanding that he has attained the age at which he is required by subsection (1) to retire, sit as a judge for the purpose of giving judgment or otherwise in relation to any proceedings commenced before or heard by him while he was in office. [Subsection as amended by section 13 of Act 25 of 1981 – Amendment No. 2]
Few points to note from this tenure which have strong bearing to our case are-
The Judges of Supreme Court retire at age of 65 and not 70 as prescribed s186.
They can extend to 70 and not to 75 as with s186 of new constitution.
The driving force leading to their admission into new constitution under section 13 of sixth schedule is that the post of Judge of Supreme Court could not be abolished without the consent of the judge before the end of his/her tenure.
It must now be clear that by operation of section 13 of sixth Schedule , a Supreme Court Judge is a public officer. All these judges were public officers serving as Supreme Court Judges as at 21 May 2013.
This means they were admitted into new constitution with an existing tenure from old constitution. Now section 13 of sixth schedule allowed these listed Supreme Court Judges to continue to serve under the same old constitution tenure until they retire.
It does not show that they had option to serve under the conditions of new constitution before they retire or change tenure to one of 15 year non renewable while still serving the s86 of old constitution.
This is critical in the sense that in old constitution retirement age of Supreme court Judge was 65 years with a condition of extending by 5 years if one elect to do so and has good medical record.
This tenure is totally different to any of the two versions of section 186 of 2013 constitution. The amended and the original section 186.
Now to seal their fate is to read section 2 of sixth schedule. It reads “Effect of Sixth Schedule. 2.This Schedule prevails, to the extent of any inconsistency, over all other provisions of this Constitution.”
This must then silence anyone who want to refer to section 186, whether amended or not amended. It is clear that these listed judges were carried over from previous constitution so until they retire they serve under those conditions. Period.
Any provision in sixth schedule supersedes anything else in constitution.
The next point of benefit, like I have explained above, is to see if these same judges could be appointed as Judges of constitutional Court, Substantive or Acting?
This is so because for one to extend or not extend a term , that term to be extended has to first legally exist. Actually the argument in record is whether section 186 apply to the listed judges.
So many reason can cause section 186 not to apply to each of the listed Judges.
By mere reference to section 13 of 6th schedule these Judges have to serve under the conditions of old constitution until they retire. It is common cause that Judges of section 166 Constitutional Court are appointed on a non renewable term of 15 years.
This term is not the same as the one these judges are serving and non of them has retired under such terms as the previous constitution. They cannot assume any other tenure before retiring or leaving office of tenure under the dictates of s13 of sixth Schedule.
It is clear from reading section 186, amended or not amended that the Constitutional court has a separate tenure to Supreme Court tenure. It is also clear that the amendment of 186 brings in a new tenure to Chief Justices and Deputy Chief Justice. Which again are different tenures which non of these Judges can qualify to be.
Whatever way one may want to take it. This is not the same tenure on which these judges are serving. You cannot just jump from one tenure to another before section 13 of sixth schedule is fully satisfied. Serve the tenure according to old constitution until you retire or resign. Then if you qualify you can be appointed on a fresh tenure.
The next point of reference to show why these judges cannot benefit the amendment on section 186 is on the appointment of Judges of constitutional Court on a 15 year non renewable term is in section 18(2) and 18(3) of sixth schedule.
From looking at the list of Judges cited, one can see that all the purported judges of constitutional court served a full term as Constitutional Court judges in terms of section 18(2) of sixth Schedule.
Section 18(2&3) of sixth schedule reads “(2)Notwithstanding section 166, for seven years after the publication date, the Constitutional Court consists of—(a)the Chief Justice and the Deputy Chief Justice; and(b)seven other judges of the Supreme Court; who must sit together as a bench to hear any constitutional case.(3)A vacancy on the Constitutional Court occurring in the first seven years after the publication date must be filled by another judge or an additional or acting judge, as the case may be, of the Supreme Court.” . Points to take note from this are as follows-
This Court was not a section 166 court. It had a term of 7 years.
The court “consisted of” Chief Justice , Deputy Chief Justice and seven other Judges of Supreme Court. This clears that these Judge are all Judges of Supreme Court seating as Judges of Constitutional Court.
If vacancy arises in the said Court it was replaced by only a Judge of Supreme Court.
It is now a known fact, whether by old section 186 or by amended 186 of constitution that a term in constitutional Court is non renewable. It is also clear that 7 year term is still a term of not more than 7 years. These judges cannot benefit from being appointed again as Judges of Constitutional Court. The time of serving Constitutional Court is non renewable.
As can be seen from section 18(3) of sixth Schedule, when ever a vacancy was to arise in the section 18(2) of sixth schedule court, it could be filled only by Judges of Supreme Court for the first 7 years from date of publication of constitution. However the original section 180 directed that when ever a vacancy arise in any court, it would be filled by way of public interviews.
Yes vacancies arose in the section 18(2) of sixth schedule court during the first 7 years. The then Chief Justice, Godfrey Chidyausiku, who was a judge of Supreme Court by appointment of old constitution, whose terms and conditions he was serving under, retired. By dictates of section 18(3) of sixth schedule, only a Judge of Supreme Court qualified. Luke Malaba who was deputy Chief Justice was appointed and in turn his post also became vacant and what ever criteria was used to appoint Elizabeth Gwaunza, the point is she was appointed into a section 18(2) of sixth Schedule constitutional Court as a Supreme Court Judge. She is still a Supreme Court Judge. In that case she cannot benefit the status of being Judge of Constitutional Court.
Equally so, Malaba despite being appointed as Chief Justice, he remained a Judge of Supreme Court by appointment. He even sat in a 9 member bench of Supreme Court Judges until the end of the expiry of the term.
No where did Malaba or Gwaunza ended up being Judges of s166 constitutional court.
Actually the 7 years which a Supreme Court Judge, acting or substantive can be a Chief Justice or Deputy Chief Justice are long time over.
Without being sworn in by a Chief Justice or Deputy Chief Justice of a section 166 constitutional Court, no ways these other Judges can stand as substantive Judges of Constitutional Court as they claim to be. Actually they claim to be Judges of Constitutional court but their Deputy Chief Justice is a Supreme Court Judge by appointment. How is it so.
Section 18(4) of sixth schedule directed how Rules of Constitutional court can be made. It reads “(4)Until different provision is made by or under an Act of Parliament—(a)rules may be made under the Supreme Court Act[Chapter 7:13] to regulate the procedure of the Constitutional Court;(b)the rules of the Supreme Court apply, with any necessary changes, to the procedure of the Constitutional Court in relation to any matter that is not provided for in rules made in terms of subparagraph (a);but any such rules, in so far as they apply to the procedure of the Constitutional Court, must be consistent with section 85 and Chapter 8”.
In 2016 ,through a Statutory Instrument , Rules of the constitutional Court were made.
Rule number 2(2) of constitutional court define “court” as ,
“court means the Constitutional Court established by section 166 of the Constitution;” .
It must be clear that the Rules applies to a section 166 constitutional court while section 18(2) of sixth schedule constitutional court applied Supreme Court rules by express direction of section 18(4) of sixth schedule. These courts cannot be conflated.
The same rule 2(2) define a Judge as follows, “Judge” means a judge or acting judge of the Court appointed in terms of section 177 of the Constitution sitting otherwise than in open court;”
For avoidance of doubt the Judges of Constitutional court are appointed in terms of section 177 however in accordance with section 180 of constitution. Check carefully the word usage of “in terms of” against “ in accordance with” as they are used. The Rule 2(2) direct to terms in section 177 which talk of only Constitutional Court Judges and then section 180 relates to appointment of judges of all courts whose terms differ.
As we all now know that Malaba was appointed as Chief Justice in 2017 and Elizabeth Gwaunza was appointed Deputy Chief Justice in 2018 replacing a vacancy that had arisen in section 18(2) of sixth Schedule. Gwauza’ and Malaba’s oaths of office is that of section 18(2) constitutional court.
They were never ever appointed as Judges of s166 court in terms of section 177 and cannot swear other Judges to be s166 Court Judges without them being anointed of same court appointment.
Again these Judges cannot benefit from section 186 tenure because they are not Constitutional Court Judges. The tenure start from date of being appointed. The life of section 18(2) of sixth schedule constitutional court is long gone. You cannot reconstruct it.
As the Rule 2(2) on definition direct us to section 177 of constitution, it is prudent to see if these Judges can benefit section 186 as amended.
The said section 177 reads “177Qualifications of judges of Constitutional Court(1)A person is qualified for appointment as a judge of the Constitutional Court if he or she is a Zimbabwean citizen, is at least forty years old and has a sound knowledge of constitutional law and, in addition, possesses one of the following qualifications—(a)he or she has been a judge of a court with unlimited jurisdiction in civil or criminal matters in a country in which the common law is Roman-Dutch or English, and English is an officially recognised language; or(b)for at least twelve years, whether continuously or not, he or she has been qualified to practise as a legal practitioner—(i)in Zimbabwe; or(ii)in a country in which the common law is Roman-Dutch or English and English is an officially recognised language; and is currently so qualified to practise.(2)To be appointed as a judge of the Constitutional Court a person must be a fit and proper person to hold office as a judge”.
This section requires close look at to see if the listed Judges could ever be appointed as Judges of constitutional Court in terms of section 177. If one is to look at wording of section 177(1)(a) you will see it reads “he or she has been a judge of a court t”.
Without reading other Court’s qualification requirements, one may miss the meaning of this very important clause. One need to read section 178(1)(a) and 179(1)(a) to see for yourself that for one to qualify as a High Court Judge or Supreme Court the candidate can be someone who “is” a serving Judge as a distinct alternative candidate, and then those that have been Judges can then be second alternative, however “is a Judge” was never used an alternative for candidates for appointment as Judges of section 166 constitutional Court.
With terms in section 177(1)(a) we can safely say these Present Judges, despite section 13 of sixth schedule having stated clearly that they will serve under conditions of old Constitution until they retire, despite having served a full term as Constitutional court Judges of section 18(2) they still do not qualify as candidates of section 166 constitutional court in terns of section 177 because they are or rather they were serving judges of Supreme Court to the date of purported appointment to Constitutional Court Judges. One cannot be appointed into section 166 constitutional court if he is a serving Judge at all.
Just as Rule Define a Judge it is clear that a serving Supreme Court Judge Can not even Act as a Judge of Constitutional Court.
This automatically rubbishes the Gwaunza led Court which in their own admission had an Acting Judge who is serving in Supreme Court. That is not a Judge of Constitutional Court.
Again if they fail to qualify as Judges of s166 Constitutional Court they cannot benefit the provision in s186 which talks about Judges of constitutional court.
Section 183 is clear “Except as otherwise provided in this Constitution, a person must not be appointed as a judicial officer of more than one court.”.
It is clear that Malaba and Gwaunza were appointed Chief Justice and Deputy Chief Justice of a section 18(2) of sixth schedule, which was a court of 9 Supreme court Judges who always sit together as a bench. That court’s term expired. Gwaunza cannot sit in the s166 constitutional Court using expired mandate. Just as Malaba. Neither could she swear in Judges after May in 2020 acting as Deputy Chief Justice.
Section 190(4) of Constitution reads as follows “(4)An Act of Parliament may confer on the Judicial Service Commission functions in connection with the employment, discipline and conditions of service of persons employed in the Constitutional Court, the Supreme Court, the High Court, the Labour Court, the Administrative Court and other courts.”
Reading from above it can be seen that an Act of parliament shall spell the conditions of service for persons “employed in the Constitutional Court, Supreme Court and High Court”. Word to take note is persons. This may include other staff members.
This then take us to Judicial Service Act. It can be seen from section 3 of the Judicial Service Act that Judges of Constitutional Court are not members of Judicial Services. Why is it so?
The simple reason is they serve on a non renewable contract which is agreed between Judicial Service Commission and each Judge. It depends also on the age of the Judge. For example, a judge contracted at age of 60 years will sign a ten year contract when a 50 year old is signing a 15 year contract.
On completion of 15 years the 50 year old has 5 years to rich 70. He/she can be admitted into Supreme Court or High Court.
These issues relate to appointment of a tenure. Before we can talk of extending that tenure, It must be clear that these listed judges do not hold such appointment or valid appointment.
While the whole reason why we are here is because someone believes the amendment of section 186 is a valid law and is their sole basis of why Malaba must extend or all these judges could enjoy amended section 186, the answer is in section 133(3) of constitution. “Validity of an Act of parliament does not depend on enrolment of the Act”. Period.
The onus to prove its validity is with the one who want to use it or rely on it.
Otherwise section 2 of constitution is simple. Any law that is inconsistent with the existing provisions of constitution is invalid. Period. After going through all the stated provisions, without even dealing with section 328, which is equally important, it can be seen that any appointments, swearing in of judges, composition of Judges sitting as court, oaths of office, extensions of tenure or self given authorities as court officials which are inconsistent with constitution are invalid. Including this particular hearing. It is invalid from onset.
The rest on questioning, if President can extend Malaba’s tenure, has no bearing. You do not extend a non existent tenure. Malaba is not serving on the section 186 tenure and cannot extend his. Period .
There stands a question asked by these Judges. Can the whole bench be removed? The simple answer there is a non existent bench so there is nothing to remove.
However let me say this from onset, section 166 constitutional court had to be “established” after the publication of Constitution while Supreme Court and other courts were rather “constituted” as there were from previous constitution in terms of section 18(5) of sixth schedule. So yes. From design of constitution this current bench, as it wants to potrey itself, was meant to be removed at end of 7 years. As an entire bench and a new bench of section 166 be established. So nothing is amiss that these judges can all be removed.
The next point is that of the Judicial authority. Section 162 is clear that Judicial authority is derived from people of Zimbabwe. Period. It does not come from president or parliament. President is given executive authority only so he cannot give that which he does not have.
The reason why original section 180 directed that every vacancy be filled by way of interview is to confer Judicial authority.
I am surprised with Justice Patel that he thinks Judicial authority comes from president or Chief Justice. That is not it.
This means one thing. Only the people of Zimbabwe can decide over the Composition of section 166 constitutional court.
The political games were allowed to play in the Judicial while the transition Court was still valid. Now only a referendum can solve this. Nothing else.
Let it be known to the learned Judges that it is the best opportunity they have given Zimbabweans that these facts presented before you and make it clear that you are not Judges of Constitutional court or have Judicial authority as well as valid terms of office. What ever response you give on these direct facts which no one besides you can answer, that response need someone to test if it is valid. That person is no where.
Clear we go to referendum.
Section 35 of constitution is clear. We equally share the responsibility to confer Judicial authority to Courts.
-Brian Mari is a social commentator who writes in his personal capacity. His views are his personal views