Why we should celebrate Malaba appointment

The elevation on March 27 2017 of Justice Luke Malaba to the position of chief justice for the Republic of Zimbabwe by President Robert Mugabe is both symbolic and significant in a number of ways.

The appointment bears testimony to the triumph of the rule of law as espoused in the 2013 Constitution of Zimbabwe. That, however, does not seek to suggest that there is indeed rule of law in Zimbabwe. To the contrary, Zimbabwe is a country where the rule of law has come under severe test since independence.

Let me digress a little so that we are all on the same page. What is the rule of law? The rule of law doctrine chiefly requires that government officials and citizens are bound by and abide by the law. If government officials and citizens act in accordance with the law and in a manner that shows that they are abound by the law, then there is indeed the rule of law. Where, conversely, government officials and the citizens act contrary to the law, then, without a doubt, there is no rule of law in a country.

The rule of law is important in this discussion. Section 180 of the Constitution spells out the processes and procedures to be followed in appointing a chief justice of Zimbabwe (as well as other judges). This section came into sharp focus in the past four months (from December 2016) because former chief justice Godfrey Chidyausiku was due to go on retirement on reaching the mandatory requirement age of 70 years in February 2017.

The Judicial Service Commission (JSC) advertised the position and then carried out the required interviews despite stiff resistance from some quarters. There was a flurry of court applications and interdicts and appeals as well as a mooted amendment of the Constitutional clause relating to the appointment of a chief justice, deputy chief justice and judge president.

After the Supreme Court upheld the JSC's appeal, the president faced the sternest test of his life as he had to decide whether he to uphold the Constitution and appoint one of the persons that had been interviewed by the JSC on December 12 2016, or wait for the amendment to the Constitution to be steered through and then make a political appointment as is provided for by the amendment.

To have waited for the amendment to sail through would have been disastrous for the rule of law for a number of reasons. Firstly, the Constitution binds every person, whether natural or juristic (organisations and companies) including the president, his executive, the judiciary and legislative organs of the state. To that extent, section 180 of the Constitution was binding on the president.

Secondly, the Constitution imposes a duty on the president, members of his executive, Parliament and the judiciary at all levels to fulfil the obligations imposed by the Constitution. Consequently, the president was obliged to fulfil the obligations imposed by the Constitution. That is to say, the president was duty bound to fulfil the duty imposed on him by section 180 in the appointment of a chief justice.

One of the obligations imposed by the Constitution which the proponents of the amendment of the Constitution, perhaps overlooked is section 324 of the Constitution, which imposes another constitutional obligation on those wielding state power. It imposes a peremptory duty on them to carry out all constitutional obligations wherever they are imposed (by the Constitution), diligently and without delay.

Flowing directly from the above imperative is the obligation imposed on the president to appoint the chief justice in terms of section 180. Once the interviews had been carried out by the JSC and the names forwarded to him and the president had decided that he was not going to reject the said list and therefore not call for a new set of names from the JSC; the president was obliged to act diligently and without delay in appointing a new chief justice. The amendment of the Constitution process would have resulted in the president violating the Constitution as it could only have been finished within a period of not less than four months.

It is not clear when the names were forwarded to the president for him to consider them for purposes of his carrying out his constitutional obligation. One will thus not be privy to such a process but would surmise that the fact that the Supreme Court sat on February 13 to determine the JSC appeal and that it upheld it then and thus cleared the legal hurdles that lay in the way of appointment of a new chief justice, for an appointment to have happened in the space of roughly six weeks thereafter will not per se amount to an inordinate delay. So, perhaps the president has acted with the necessary speed as envisaged by the Constitution.

To digress, the president, evidently, has not acted with enough speed in appointing Supreme and High Court judges that were interviewed last year. As such, the president could have fallen foul of section 324 constitutional obligation. He definitely has a duty to attend to the same without further delay.

Going back to Justice Malaba, his appointment is also symbolic and salutary in that it bears testimony to one fundamental requirement of the Zimbabwean judiciary. That requirement is imposed by section 184 which requires that judiciary appointments in Zimbabwe should reflect broadly the diversity and the gender composition of Zimbabwean society.

It is the first time in the judicial history of Zimbabwe that a Ndebele (perhaps Kalanga) person has been appointed a chief justice of the nation. However, the nation needs to move further forward and make more appointments to the bench reflective of the diversity of Zimbabwe. Zimbabwe is made up of Shona, Ndebele, Kalanga, Venda, Xhosa, Tswana, Sotho, Tonga, Shangani, Ndau, Nambya, Koisan, Chewa, Barwe people, white people, Moslems, Indians etc.

This is testament to the rich diversity that Zimbabwe enjoys and makes it a truly multi-cultural society. I am yet to see a Chewa, Barwe, Koisan, Ndau, Shangani, Sotho, Tonga, Tswana, Xhosa judge who has been appointed to the bench. Since the turn of the millennium there has been no (to my knowledge) Indian or Moslem or white judge appointed to the bench.

This calls for self-introspection on the part not only of the executive but also on Zimbabwean citizens when they make nominations for people to be considered for appointment to the bench. Further, the bench is still male-dominated with the concomitant result at times of judgements reflecting a patriarchal jurisprudence. To improve the jurisprudence, we need more female judges on the bench.

The appointment of Malaba to the position of chief justice on merit should be celebrated as the person presiding over the apex court should be a person with a deep appreciation of the law. He is a celebrated jurist of long standing and who has written a lot of reliable judgements in Zimbabwe.

However, a chief justice should also have certain attributes to be a valuable judge exercising a power derived from the people. The person should be open-minded to new ideas influenced by the societal upward mobility, development needs of a people, technological advancement as well as the human societal advances in various areas. What was a taboo yesterday may now be embraced with open arms.

Malaba's decision on the ZBC (Wekare and involving MP Majome) cases where he ruled that those possessing gadgets capable of receiving a ZBC signal have a duty to pay licence fees, is in that regard a cause for concern. Within the ambit of freedom of expression as espoused in the Retrofit case, people have a choice as to what information they wish to receive and from which source they can receive (and watch). Why should one pay for a service they do not consume from ZBC?

In an era where so many radio stations have been licensed and a number of TV stations on digital system lawfully broadcast into Zimbabwe, the Broadcasting Act is clearly an anachronism whose sale-by date is long past. The monopoly which ZBC used to enjoy as reflected in the Broadcasting Act is indefensible at all.

It is just akin to the monopoly that the Post and Telecommunications parastatal previously enjoyed and was rejected by the Supreme Court bench (sitting as a constitutional court bench) in the Retrofit case (in 1995), thereby opening the floodgate of technology in the form of cellphones which we definitely cannot do without today. It took a brave and visionary bench to make such a call within the ambit of the law.

Malaba will be closely watched to see whether he will inexorably be a servant of the people answerable to none but the law as espoused in the Constitution and other laws consistent with it or will hold the improvement in the jurisprudence hostage. Legal scholars will see if he will stand to breathe life into the new Constitution or not. Breathing life will undoubtedly improve the welfare of the people and enhance human and societal development and make the law a true accessible to all.

Matshobana Ncube is a senior lawyer based in Bulawayo