Malaba saga a test to Zim democracy
On September 22, 2021, the Constitutional Court passed judgment in Marx Mupungu versus the Justice, Legal and Parliamentary Affairs minister and others.
The court ruled in favour of the applicant, Mupungu, who approached the court seeking the setting aside of the declaratory order handed down by the High Court in the case of Musa Kika versus the Justice, Legal and Parliamentary Affairs minister and others and Young Lawyers Association of Zimbabwe and another versus Justice, Legal and Parliamentary Affairs, minister and others HH 264/2021 on May 15, 2021.
The High Court had ruled that Chief Justice Luke Malaba had ceased to be the chief justice on attaining the retirement age of 70 years on May 15, 2021, notwithstanding the purported extension of his tenure by the president following Constitution of Zimbabwe (No. 2) Act of 2021.
In the High Court, Kika made the argument that a term limit extension could not benefit an incumbent, per section 328 of the constitution.
He cited all judges of the Supreme and Constitutional Courts as respondents, as potential beneficiaries to this manner of extension of tenure, thus as individuals with a personal interest in the matter.
Two applications were filed following the High Court decision of 15 May 2021.
The first was an application for contempt of court against the Malaba, which was dismissed by the High Court.
This was after Malaba had continued to attend office, notwithstanding the High Court order.
In that case Justice Webster Chinamhora recused himself before the hearing after he had interfaced with a party to the proceedings, the Secretary of the Judicial Service Commission (JSC).
Senior lawyer, Beatrice Mtetwa, thereafter submitted a complaint to the JSC and a request for an investigation to be instituted.
The outcome of that is yet to be advised. The second was an application for leave to execute pending appeal, which we withdrew before hearing.
At that point, we elected not to disclose the reasons for withdrawal, as we still elect, but it is pertinent to highlight that this was in the interest of ensuring that judicial processes occur in a fair manner.
When the judges were dissatisfied with the decision of the High Court they noted an appeal to the Supreme Court, which appeal was never prosecuted.
Instead, Mupungu who was not party to the case, decided to come and change things, deciding that an appeal was not appropriate, but that the judges needed to have the matter determined in a different court, in the Constitutional Court, and on different grounds.
We had serious difficulty comprehending and coming to terms with this kind of process.
As we were to learn from the judgment of September 22, 2021, the Constitutional Court decided to proceed to hear the matter, citing public interest.
In the Constitutional Court, Mupungu argued that the order made by Justices Happias Zhou, Jester Charewa and Edith Mushore in the High Court concerned matters of constitutional invalidity and was of no effect until reviewed and confirmed by the Constitutional Court.
The Constitutional Court agreed and declined to confirm the order on the basis that the High Court misdirected itself in its determination.
Resultantly, the judgment passed by the Constitutional Court affirmed the extension of Malaba’s tenure of office beyond 70 years, for five more years.
In the Constitutional Court, Kika argued for the recusal of judges presiding over the matter as they had a substantial interest in the matter, in that the judges were parties to the High Court matter, and had in fact all noted an appeal which was pending before the Supreme Court.
The basis for this application was the
nemo judex in causa sua rule, meaning that “No one should be a judge in their own cause”.
It is a basic rule of natural justice that no one should be a judge in a case in which they have a personal or vested interest. The recusal application was dismissed. In the Constitutional Court, we decided not to participate beyond the arguments on recusal, as we strongly believed that our further participation would amount to aiding in violating a basic rule of natural justice.
Prior to this litigation, there were monumental efforts to reverse the proposed amendments to the constitution, which amendments would open up the window for the president to act as he did in controversially extending the tenure of the chief justice.
When we initiated this litigation, it was because all engagements that had been done by civil society and concerned citizens broadly to stop the regressive amendments to the constitution, more so to stop amending the constitution both in substance and timing for the sake of ensuring that the chief justice remains in office beyond his retirement age, were futile.
Changing the constitution to extend power is something that the framers contemplated, and they inserted a clause in section 328 to the effect that anything that extends the time in which one is in office, does not benefit an incumbent.
It was meant to prevent a mischief as that which occurred in the extension of the chief justice’s tenure.
However, through an approach to constitutional interpretation, the Constitutional Court arrived at a different conclusion — that an extension of age limit is not equal to an extension of term limit.
While we have noted the judgment of the Constitutional Court, we believe there is an important point to make: judgments, especially of the Constitutional Court, are monumental in their effect.
They set jurisprudence that only the Constitutional Court will be able to change.
It thus goes without saying, that extreme caution has to be taken in making both remarks and findings of substantial and procedural law, the implications of which are far reaching beyond an instant case.
Our hope and trust, is that all such statements and findings of substantive and procedural law made in the Mupungu ruling, including the approaches chosen to constitutional interpretation, are indeed constitutive of the best direction that our jurisprudence ought to take in the Constitutional Court’s view, in these nascent days of our constitutional democracy.
Our constitution embodies the aspirations of the Zimbabwean people.
Both the black letter law and the spirit of the constitution constitute the social contract and an expression of our standards of rule of law.
It sets the parameters within which those in public office can exercise public power.
At this stage, we believe the point is eloquently made; that of the revisions to the supreme law, which the people largely opposed, to open the door for a man to continue in office beyond what the supreme law set.
It is not clear, at least to those of us who are the public, whether the illustrious men and women currently constituting our superior courts are unable to become chief justices, or whether the one that the Constitutional Court has now confirmed to be substantive chief justice, is preferred for reasons which are yet to be made public by the president who extended his tenure.
Whatever the reason, we can only hope such to be in the public interest.
From the beginning until the ruling of the Constitutional Court on September 22, 2021, the case has played out in the public domain.
The people, the nation, have borne witness to the cause that was litigated, and the process that unfolded.
We are convinced in the adage that justice must not only be done, but must be seen to be done.
The people, from whom judicial and all form of public power in Zimbabwe is derived, will come to their own considered conclusions.
On our part, we remain vigilant as active citizens, to challenge that which appears to sacrifice the public good, in the interest of personal, sectarian or narrow interests.