THE SPIRIT OF MADIBA
The governments of Kenya and Zimbabwe could take a lesson from Nelson Mandela when it comes to upholding the rule of law
The spirit of former SA president Nelson Mandela hovers over at least two African countries in a special way this week. Judges in Zimbabwe and Kenya have delivered decisions that invalidate and undo years of careful planning by their heads of government. The reaction is a test for constitutionalism.
Granted, the judgments were not from the apex courts of the two countries, so appeals will be filed in both cases, but Zimbabwe, at least, has already failed to follow the example — respect for the constitution and rule of law — set by Mandela when he, as president, faced adverse court decisions.
The Zimbabwe case concerns new amendments to the constitution that, among other changes, allow supreme and constitutional court judges, who are obliged to retire at 70, to request that President Emmerson Mnangagwa extend their term by five years.
The first to benefit from the change has been chief justice Luke Malaba, who turned 70 last weekend. Just days before he reached that milestone, the government announced Malaba would be staying on for another five years.
This decision, and the amendment that made it possible, were targeted during a marathon court session that lasted 11 hours, through Friday night.
Human rights defenders argued that the amendment is unconstitutional and that judges should not be put in the position of receiving “favours”.
On Saturday afternoon, the three high court judges who heard the matter found against Malaba and said his term of office had officially ended with his birthday.
But in an extraordinary statement, justice minister Ziyambi Ziyambi immediately castigated the court for its decision.
He threatened to take action against the judiciary, claiming it had been captured by foreign interests, and added: “We are now going to poke the enemy in the eye and confront it.”
Ziyambi’s vitriol led, among other things, to a day-long flurry of speculation, ultimately shown not to be correct, that one or more of the judges who heard the Malaba case had been arrested.
The decision raises the stakes in the ongoing tension between Zimbabwe’s government and human rights defenders over Harare’s clear failures to respect the constitution and the rule of law.
Kenya, too, was shaken last week by a high court decision that found the constitution had been infringed, this time by President Uhuru Kenyatta, whose Building Bridges Initiative (BBI) proposes many amendments to the 2010 constitution.
A far-reaching decision
In a decision that was broadcast live on social media, and took 5½ hours to read, the judges said the constitution did not allow Kenyatta to take the path he had chosen to enact the proposed changes, and that the entire process was “unconstitutional, null and void”.
The 321-page judgment locates its critique in Kenya’s “agonised history” of constitutional reform, and its determination both to prevent political elites from sidelining “the people” in decision-making, and to prevent constitutional amendments that in effect gut the constitution. Its impact is farreaching — it could even result in impeachment steps against the president — and some legal scholars believe it is more significant than the 2017 court decision nullifying the national election result.
Though Kenyatta followed that decision with blatant threats against the judiciary, he has largely kept silent this time, allowing the BBI secretariat to react to the decision and launch an appeal.
In that response, at least, he has so far acted in keeping with the constitution.
Mandela, however, still stands alone in acknowledging that there is “nobody, not even the president, who is above the law, [and] that the rule of law generally, and in particular the independence of the judiciary, should be respected” — and then putting that acknowledgment into practice.
Justice minister Ziyambi Ziyambi claimed Zimbabwe’s judiciary had been captured by foreign interests