Celebrate Malaba appointment with caution

TO avoid possible disappointment of expecting too much from the recent surprise appointment of Justice Luke Malaba by President Robert Mugabe to substantive Chief Justice (CJ), legal analysts have advised Zimbabweans to celebrate the development with caution.

Malaba, who was sworn in last week Thursday, takes over from Justice Godfrey Chidyausiku - who retired at the end of February.

He was deputy Chief Justice since 2008 and was acting Chief Justice for a month before his elevation to the post.

His appointment, right in the middle of the high stakes succession drama in the ruling ZANU-PF, came as a pleasant surprise to many who had given up hope of the process being done transparently and within the confines of the law.

Having come tops with a 92 percent mark in the interviews for the job held in December last year, the respected jurist was the run-away favourite for the post, but there were fears that the ZANU-PF government - which had started amending the Constitution to give President Mugabe powers to handpick the candidate of his choice - would shut him out.

Against all expectations, President Mugabe proceeded to faithfully follow the appointment process provided for in the Constitution and went on to pick Malaba to be the country's top judge.

While Malaba's appointment was generally welcomed by Zimbabweans from across the political divide, legal analysts have warned that the celebrations should be held with caution as it is difficult to predict the direction that the new bench is likely to take.

Although Malaba is known for his independence - a quality that has not made him very popular with some political players unlike his predecessor - some of his landmark judgments have earned him both friends and foes alike.

In a country where the independence of the judiciary and the rule of law are subject to intense debate, there are many factors that could determine what type of legacy Malaba (66) could leave when his four-year stint comes to an end when he reaches the mandatory retirement age of 70 in 2021.

United Kingdom-based law expert, Alex Magaisa, said while the appointment had given reason for some optimism, this must be heavily qualified with caution because he could turn out to be more of the same, if not worse than his predecessor.

"Overall, his jurisprudence so far is a mixed bag. He has made some progressive judgments, but he has also made some interpretations that are open to criticism. Now that he is Chief Justice, he has the opportunity to chart his own course and show the kind of judge that he is," Magaisa pointed out.

He said given the way Malaba was appointed despite him not being the obvious politically correct choice, he might be subjected to some underhand political wire-pulling by the appointing authority.

"In this regard, while his performance at the interviews gave good cause for optimism, it is important to remain cautious. (President) Mugabe and ZANU-PF do not usually make the mistake of appointing persons to senior positions without a good appreciation of what they will get. The system is very thorough in its background checks and it is fair to say they probably know a lot more about the new Chief Justice, which the rest of us don't know. These are the things that could be used to keep him in check," Magaisa pointed out.

Bulawayo-based senior lawyer, Matshobana Ncube, said the direction that Malaba could take the bench is not easy to tell given that his record shows that he has oscillated between being independent-minded and appearing to be playing to the gallery.

"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 accessible to all," Ncube said.

Among some of the contentious issues that will likely test the independence of Malaba's bench include its resolve on the alignment of the country's laws to the new Constitution - something that President Mugabe's government has been very reluctant to implement.

This could include the possible challenge on the government refusal to implement the constitutional clause on devolution that has been conveniently ignored out of existence, with President Mugabe opting to appoint ministers of Provincial Affairs to perform the same duties performed by provincial governors in the previous Constitution.

In one of the judgments for which he has been severely criticised, Malaba ruled that voting was not a fundamental right when he denied the Diaspora voting rights.

The right to vote is now explicitly recognised under section 67 of the new Constitution, with extensive provisions elsewhere reinforcing the right to register and the right to vote in elections.

It would be interesting to see how the new Chief Justice would handle a similar matter if it were brought as a test case under the new Constitution.

Legal experts said although it could be difficult to tell which direction Malaba's bench would take, his appointment was a welcome development by a government that has a questionable record when it comes to upholding the rule of law.

"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," Ncube said.

Magaisa agreed with Ncube saying what the authorities did in appointing Malaba deserved commendation as it fulfils the principle of constitutionalism.

"This is not so much a celebration of the appointed candidate, but of upholding the constitutional process. It was utterly unreasonable to stall an existing constitutional process on account of a proposed amendment or litigation. If this were allowed, it would set a dangerous precedent where the State could avoid a constitutional requirement citing litigation or a proposed amendment. Section 2 of the Constitution makes it clear that the Constitution is the supreme law of the land and every other law or policy is subject to its terms. To stall a constitutional process in favour of a proposed amendment would elevate a proposed amendment above the level of the Constitution.

"It was clear that the litigation and proposed amendment were designed to frustrate the on-going constitutional process. That the constitutional process was allowed to reach its logical conclusion must therefore be hailed as a great gesture in support of constitutionalism. When the Constitution provides for certain procedures, those procedures must be followed regardless of whether or not they satisfy the interests of a group or faction. To stall the process would have given priority to factional interests ahead of the Constitution."

The process leading to the appointment of Malaba was fraught with a myriad of challenges as the process excited the interest of the two factions of the ruling ZANU-PF party that are battling for control of the party in readiness to decide who may succeed President Mugabe.

Speaking after his swearing in last week Malaba, however, said his appointment was confirmation that there is constitutionalism and rule of law in Zimbabwe and undertook to do his part by ensuring an efficient justice delivery system.

"This is confirmation that as a country we strongly believe in the rule of law and as such, let me say it is a day when we have demonstrated as a country, not only that we respect the processes by which our judiciary is appointed to office, (but) we also respect the wishes of the people and it is in this regard that I would like to thank the people of Zimbabwe, who through the President - who is the appointing authority - saw it fit and proper to confer upon me the responsibilities of executing the functions of the Chief Justice of the Republic (of Zimbabwe).

"I have no hesitation at all in promising that I see this confidence as a test on my part to fulfill the expectations of the people and those expectations can only be defined in terms of the values and aspirations of our society which are contained in our Constitution and the laws of the country. I see my task as being to uphold the law and I look forward to a term of office-which to many may appear to be very short-but to me is sufficient to anybody with a clear vision to executive his or her visions.

"My vision at the moment is that I would want to see a judiciary that functions according to the purposes for which is it established as the third organ of the State."

He said the independence of the judiciary should not be mistaken to mean independence from performing its duties, so he would ensure that people have easy access to the courts where they would get served in the shortest possible time.

Malaba got his law degrees in 1974 from the University of Warwick and in 1982 from the University of Zimbabwe.

He spent three years as a public prosecutor in Bulawayo (1981-1984), before beginning his career as a magistrate in 1984 in Masvingo.

Malaba rose steadily through the ranks of the magistracy and attained the rank of regional magistrate in 1990.

He was appointed as a judge of the High Court in 1994.

He served as a Judge of the Bulawayo High Court from 1994 to 2001.

He was elevated to the Supreme Court in August 2001 and became the country's first Deputy Chief Justice in 2008.

Malaba has also held an appointment as a judge of the COMESA Court of Justice.

He becomes Zimbabwe's sixth CJ.

Justice Hector Macdonald, the last CJ of Rhodesia, continued briefly after independence before resigning.

The first CJ of an independent Zimbabwe was Justice John Fieldsend (July 1980 to February 1983) followed by Justice Telford Georges (March 1983 to February 1984), who was succeeded by the first black CJ, Justice Enoch Dumbutshena (1984 to 1990), followed by Justice Antony Gubbay (1991 to 2001) before Chidyausiku came in 2001.