Experts speak on Chief Justice judgment

The appeal to the Supreme Court against a High Court decision blocking sitting judges from holding office after attaining 70 is expected to be lodged today.

The Government is moving fast as the decision directly affects Chief Justice Luke Malaba as the first judge to reach 70 since the recent constitutional amendment was passed by Parliament and gazetted as law.

Chief Justice Malaba attained the age of 70 on Saturday but as the now amended section of the Constitution allows, he exercised his option before his birthday to continue until 75 and submitted the required medical certificate that he was in good mental and physical health.

However, this was challenged as a matter of urgency in the High Court, where a three-judge panel comprising lead judge Justice Happias Zhou and Justices Edith Mushore and Helena Jester Charewa on Saturday ruled that the particular clause changing the retirement ages of sitting judges required a referendum after passing through Parliament.

The Judicial Service Commission has since announced that Deputy Chief Justice Elizabeth Gwaunza is now the acting Chief Justice, pending the outcome of the appeal.

Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi yesterday confirmed the Government decision to file the appeal today.  

"We want to file the appeal against the judgment," he said in response to a question from The Herald.

Under the Constitution, most amendments can become part of the Constitution once they have received the approval of two thirds of the membership of the National Assembly and of the Senate sitting separately.

But amendments to the Declaration of Rights and to the chapter on Agricultural Land do require approval in a referendum within three months of passing the parliamentary votes along with the section that details how the Constitution can be amended,  High Court judges said the amendment relating to the retirement age of judges also required a referendum although the full reasons for their judgment are yet to be given.

They ruled the amendment could not apply to sitting judges until a referendum is held. It is understood that the three judges who heard the urgent application brought by prominent businessman Mr Frederick Mutanda, Young Lawyers Association of Zimbabwe and Human Rights' lawyer Mr Musa Kika, need to give their reasons promptly to allow Government lawyers to analyse these and to avoid any delay in the hearing of the appeal and the final judicial decision.  

While the three judges ruled against the extension of retirement ages, and so against Chief Justice Malaba's tenure of office, some legal experts have expressed their views in support of the constitutionality of the recent constitutional amendment that got the signature of President Mnangagwa since retirement ages are not in the two chapters where amendments require a referendum in addition to the super majority in Parliament.  

Commenting on the High Court ruling yesterday, legal expert Mr Obert Gutu criticised Justices Zhou, Mushore and Charewa for allegedly failing to make a distinction between a term limit and an age limit.

He said the Constitution Amendment (No.2) Act did not extend the term limit of judges of the superior courts, but merely extended the age limit by allowing them to continue occupying judicial office for another five years after attaining the age of 70, subject to them providing medical proof that they are still in sound physical and mental health.

"This, to me, is the major weakness of the High Court judgment that was handed down on Saturday, May 15, 2021," said Mr Gutu.

"Because Constitution Amendment (No.2) Act does not extend the term limit of judges of the superior courts, there is, therefore, no need to go to a referendum."

Judges of the Constitutional Court have a term limit of 15 years and cannot be reappointed and even then would have to retire at 70 or, if they exercised their option to continue, at 75.

Chief Justice Malaba had not yet served 15 years as a Constitutional Court judge and thus, his age limit could lawfully be extended to enable him to serve for another five-year period, subject, of course, to the requirements of providing a medical certificate.

"I am absolutely convinced that the High Court judgment is challengeable in the Supreme Court with a significant degree of prospects of success of the appeal," he said.

"Clearly, the High Court totally misdirected itself by failing to distinguish between a term limit and an age limit."

Prominent lawyer, Advocate Lewis Uriri, said by accepting the extension of his term of office, Chief Justice Malaba had further demonstrated his commitment to serving the nation and the justice system.

"A law is a law because of the validity of its source from within the legal system. The learned Chief Justice has been appointed in terms of a law deriving from a valid source within the legal system," he said.

Adv Uriri was convinced that all Zimbabweans would benefit from Chief Justice Malaba's continued service in his post.

"The legal profession in particular, will no doubt be equipped to better serve the nation from his commitment to the teaching of Superior Court Practice and his immense passion for the study and logical application of legal principles.

"I believe that under his leadership study and diligence will become the duty of all legal practitioners. This, so far, has been part of his legacy as Chief Justice," said Adv Uriri.