High Court Decides Chief Justice Malaba Has Retired – Court Watch 8 / 2021

After a hearing on the 14th May that went on into the early hours of the next morning, the High Court delivered a judgment on the 15th May declaring that Chief Justice Malaba had retired from the Bench on reaching his 70th birthday that day – in other words, that he was no longer Chief Justice of Zimbabwe or even a judge.

To understand the decision, it is necessary to give some background.

The Lead-up to the High Court Decision

Hasty amendment of section 186 of the Constitution

Under section 186 of the Constitution as it was originally enacted, all judges retire on reaching their 70th birthday. There was no provision for them to continue in office after they reached that age, except to complete any part-heard cases they had left unfinished.

Then in January this year the Constitution of Zimbabwe Amendment (No. 2) Bill was published and it proposed to change section 186 so that judges of the Constitutional Court and Supreme Court would be allowed to continue in office for up to five years after reaching the age of 70, subject to the President being satisfied they were physically and mentally fit to continue serving as judges. The Bill was fast-tracked through the National Assembly in late April and was passed with extensive Committee Stage amendments [see Constitution Watch 1/2021]. One of the amendments was highly significant. A new version of section 186 contained a subsection saying that notwithstanding section 328(7) of the Constitution, the new provision for judges to stay in office after the age of 70 would apply to all the judges of the Constitutional and Supreme Courts, including the Chief Justice and the Deputy Chief Justice – implying though not actually saying that it would apply to all the judges currently in office.

Having passed through the National Assembly on the 20th April the Bill went through its remaining stages with remarkable haste:

• Tuesday 20th April – The Bill was sent to the Senate.
• Tuesday 4th May – The Bill, having been fast-tracked, was passed by the Senate with all the amendments made to it by the National Assembly.
• Friday 7th May – The Bill was gazetted as the Constitution of Zimbabwe Amendment (No. 2) Act by the President’s office, the President having signed it into law. The Act can be accessed on the Veritas website.

Extension of Chief Justice’s term

It had become apparent during the Bill’s fast-tracked passage through Parliament that the Government was determined it should become law before Chief Justice Malaba’s imminent 70th birthday on Saturday 15th May, when he was required by law to retire. This was confirmed when it became known that the President’s Office had sent a letter dated 11th May to Chief Justice Malaba informing him that the President had accepted his election to serve until he turned 75 and the medical certificate he had submitted.

Challenging the extension

Two civil society organisations, the Zimbabwe Human Rights NGO Forum and the Young Lawyers Association of Zimbabwe, filed separate applications in the High Court challenging the extension of the Chief Justice’s term of office. Between them, the applicants cited the Minister of Justice, the Judicial Service Commission, the Attorney-General and all the judges of the Constitutional and Supreme Courts.

The High Court Decision

The two applications were heard together on the afternoon of Friday 14th May by a three-judge bench consisting of Justices Zhou, Charewa and Mushore. The hearing lasted until early the following morning. On the afternoon of Saturday 15th May the judges gave their decision in the form of a summary of their reasons for upholding the applications. A document purporting to be a transcript of the summary can be accessed on the Veritas website, but it contains many typographical errors and does not seem to be complete. Veritas cannot vouch for its accuracy. We will publish the full judgment as soon as it becomes available.

From the summary and from notes by persons present in the court, it appears that the decision was:

• The new section 186 had the effect of extending the length of time that the Chief Justice and the judges of the Constitutional Court and the Supreme Court could remain in office. It was therefore an amendment to a “term-limit provision” for the purposes of section 328 of the Constitution.
• Under section 328 an amendment to a term-limit provision cannot apply to persons currently holding the office affected by the amendment, unless the amending Bill was approved by voters at a national referendum – which the Constitution of Zimbabwe Amendment (No. 2) Bill was not.
• Hence the newly amended section 186 of the Constitution does not apply to judges of the Constitutional Court and Supreme Office who were in office on the 7th May, the day the Amendment Act came into effect.
• As a result Mr Malaba ceased to hold office as Chief Justice and a judge on attaining the age of 70 years, i.e., at the beginning of Saturday 15th May.

The court’s reasoning seems to have been the same as that put forward by Veritas in our Constitution Watch 2/2020 of the 26th January 2020.

Reaction to the Judgment

Statement on the decision by Judicial Service Commission

The JSC issued a statement saying that “subject to a pending appeal to be filed in due course”, the Deputy Chief Justice, Justice Elizabeth Gwaunza, was now the Acting Chief Justice of Zimbabwe.

It is not clear from the statement whether Mrs Justice Gwaunza will be acting as Chief Justice until an appeal is filed – because filing an appeal against the judgment will suspend the operation of the judgment – or whether she will continue to act until the Supreme Court finally decides the appeal.

Statement on the decision by Minister of Justice, Legal and Parliamentary Affairs

The Minister of Justice issued a statement denouncing the judgment and the judges who delivered it. The statement contains remarks unworthy of a Minister and contemptuous of the court, so we have not put it up on our website.

The Minister did however say that he had instructed the Government’s lawyers to file an appeal “first thing on Monday morning”, i.e. this morning.

Effect of an Appeal

The effect of filing an appeal is normally to suspend the judgment appealed against until the appeal court decides the matter. What that means in this case is that the High Court’s decision that Mr Malaba has ceased to be a judge will be suspended until the Supreme Court rules on its correctness.

It may be assumed that the reason why the Minister wants to file an appeal so urgently – even before a full judgment has been issued – is that he believes that once the judgment is suspended Mr Malaba will be able to resume office as Chief Justice at least until the Supreme Court has delivered its judgment, which may be a long time in the future.

This may cause problems however.

In some cases it can be advantageous for a losing party to file an appeal because it delays enforcement of the judgment. A debtor who has been ordered to repay a debt, for example, can win time by filing an appeal and then doing what he can to delay the hearing of the appeal. If he is lucky inflation may have reduced the amount he has to repay even if the appeal court rules against him.

This is not a case like that, however. The High Court has ruled that Mr Malaba ceased to be a judge when he reached the age of 70. If the Supreme Court rules that the High Court’s ruling was correct – and it most certainly is correct – the Court will not be able to validate whatever Mr Malaba may have done in office after reaching that age, because by operation of sections 186 and 328 of the Constitution Mr Malaba has not been a judge since the 15th May. Anything Mr Malaba may have done after that date as Chief Justice or as a judge will be and will remain invalid.

Conclusion

The High Court’s judgment was momentous and far-reaching. Whatever the result of an appeal Mr Malaba’s standing and legitimacy as a judge has been seriously diminished. Three judges of the High Court have ruled that he is no longer a judge, and their ruling is solidly founded in the law. Even if the Supreme Court comes to a different conclusion from that reached by the judges, there are further challenges pending to the Constitution of Zimbabwe Amendment (No. 2) Act, based on the questionable way in which the Act was passed by Parliament. If any of those challenges are successful the result so far as Mr Malaba is concerned will be the same: he ceased to be a judge on the 15th May.

Source: Veritas