HomeOpinion & AnalysisMalaba amendment behind the crisis

Malaba amendment behind the crisis

BY ALEX MAGAISA

This weekend, 14 men and one woman who lead judiciaries across the southern and eastern African region are gathering at Victoria Falls, the picturesque resort city at the border of Zimbabwe and Zambia, for the Southern African Chief Justices’ Forum Conference.

But not even the wonder and majesty of the world-famous waterfall that beautifully interrupts the mighty Zambezi will obscure the legitimacy deficit that encumbers the host.

Among the elevated company that graces the resort city will be chief justices whose judiciaries have demonstrated courage in recent years and others who hold a modest and ignominious record.

To put it in culinary terms, if it were a buffet, some dishes would be vastly popular, while others would barely draw attention.

The Malawian judiciary, for example, would be popular. It made waves when it produced a historic decision that overturned a presidential election in 2020.

In doing so, it followed the exemplary lead of the Kenyan judiciary which reached a similar verdict a couple of years earlier.

It takes great courage and independence to overturn an election result that favours an incumbent.

The South African judiciary has also been exemplary for many years since the country gained freedom in 1994, developing jurisprudence of high pedigree that is coveted the world over.

And this year, the apex court outdid itself when it stood up against the headwinds of populism and sent a former president to jail for contempt of court.

Some judiciaries allow themselves to be trampled over by junior officials simply because they wave the ruling party card.

They are deferential to popular politicians even if they are wrong, their punishment is often soft and inconsequential.

In short, they allow themselves to be undermined by strongmen.

The Constitutional Court of South Africa rejected that course and did not hesitate to send a popular former leader to jail for contempt of court.

At the lower end of the spectrum, however, lies the host of the high-profile jurists who still sits uneasily on his throne at the top of Zimbabwe’s judiciary.

Under normal circumstances, he would not have been there to receive the judicial royalty of the region.

Chief Justice Luke Malaba faces serious resistance from the legal profession, civil society, and citizens following the controversial extension of his term of office in May this year, when he should have retired.

There are cases against him, which are still pending in the very courts over which he presides.

The circumstances that cause this precariousness of his position and indeed his legitimacy are the subject of this article.

The Southern African Chief Justices’ Forum is an important network of governance in the field of the judiciary.

Although it is informal, it is one of several networks around the world where judicial officers meet regularly beyond their states to share and exchange information, build solidarity, and advise each other on a peer-to-peer basis.

To this end, its website says it “provides a formal platform, structure and framework through which the Chief Justices of Eastern and Southern Africa and Africa at large are able to collectively reflect on critical issues on justice delivery and adopt action plans to address those issues in a systematic and sustained way in order to strengthen justice delivery in the our region.” (sic)

It is part of the system of “network governance” that global governance scholar Anne-Marie Slaughter wrote about in her seminal book A New World Order back in 2004, when she described with some optimism, the increasingly important role of networks in governance beyond the state.

As the world’s problems increasingly become networked, there is a need for networked solutions, wrote Slaughter in her seminal book.

The view was that parts of the state would increasingly work with similar parts of other states through networks to face common challenges.

For example, national financial and environmental regulators would work with similar regulators in other states to tackle transnational problems such as money laundering and pollution.

Legislators would also do the same to tackle policy issues that transcend the state.

It is in this context that organisations like the Pan African Parliament for legislators fall.

It brings MPs from different countries to work together on matters of common interest.

The Southern African Chief Justices’ Forum is such a network for judges.

They have areas of commonality such as defending judicial independence, promoting judicial best practice, developing a common approach to the protection of human rights, and much more.

The network is the enclave of judiciaries as they seek to forge links and promote their interests in a complex world where others are building similar networks.

While the importance of such networks in an increasingly complex and inter-related world is not in doubt, there is a danger that they can easily become elitist if they do not get input from or engage civil society, intellectuals, and citizens in general. Instead of serving the public interest, they may end up serving the private interests of judges.

Politicians have already fallen into this trap, with organisations like the Sadc now resembling trade unions of leaders instead of serving the public interest of citizens in the region.

It is important, therefore, for networks such as the Southern Africa Chief Justices Forum to open doors to stakeholders such as civil society.

Judges already suffer the deficit of being detached from the citizens by the manner of their appointment.

They would do well to create platforms for citizen engagement.

This article is written in the spirit of engaging the judicial royalty of the region regarding the on-going crisis in Zimbabwe’s judiciary.

Zimbabwe’s chief justice has been in a sticky spot for a few months now.

The reasons for this discomfort are deceptively simple.

Had things followed the proper constitutional course the chief justices would have been received by a new host.

However, the natural course of the constitution was rudely, controversially, and arguably illegally interrupted by the hand of politics. How did this happen?

On December 31, 2019, the government gazetted an amendment to the Constitution.

One of the changes in Constitutional Amendment (No. 2) was to raise the retirement age of the chief justice and other judges of the superior courts, namely the Supreme Court and the Constitutional Court.

The original provision in the constitution adopted in 2013 set the retirement age at 70.

The proposed amendment would allow a judge to extend his or her stay in office to the age of 75.

There were several objections to the proposed change.

The principal objection was that the retirement provision could not be amended unless it was submitted to a referendum.

The argument was based on a provision of the constitution that effectively requires that any changes to a “term limit provision” must be submitted to a referendum.

The government’s counterargument was that the retirement provision was not a term limit provision.

A term limit provision is defined in the constitution and it includes the retirement provision.

A “term-limit provision” is defined as “a provision of this Constitution which limits the length of time that a person may hold or occupy a public office”[1].

A retirement provision naturally limits the length of time that a person may hold or occupy an office.

Applying this to Constitutional Amendment No. 2, it is an amendment that extends the length of time that the chief justice and other judges of the superior courts may hold office.

There can be no doubt that it is a change to a term-limit provision that is regulated by the terms of section 328 of the constitution.

This means firstly, that the amendment should have been submitted to a referendum and secondly, even if it had been passed, it could not have benefited Malaba and his fellow judges of the Constitutional Court and the Supreme Court.

This, however, is not what has happened in Zimbabwe, leading to the ongoing crisis of legitimacy.

The problem, as we have just observed, emanates from serious procedural irregularities associated with the constitutional amendment extending Malaba’s tenure.

The first problem is that the amendment to the term-limit provision was not submitted to a referendum.

The second problem is that the amendment was applied to benefit incumbent judges, including Malaba, which is why he is still in office beyond his 70th birthday.

It is important to add that the amendment was rushed through Parliament and was passed just a few days before his birthday.

It was a clear move to ensure that he benefited from the amendment, which is why commentators refer to it as the “Malaba Amendment”.

  • This is an extract from Alex Magaisa’s latest Big Saturday Read blog

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