By Mari Matutu |  am watching the events of the court case filed by Mr Musa Kika with interest. Two days ago Luke Malaba and his fellow judges indicated that they are opposing the application. 

The general background is Mr Kika wants Malaba to retire on the 15th May when he turns 70. He cites s328(7)
as the bedrock of his case.

Of interest I have seen the lawyers that represent the 16 Judges also requesting that the Judicial Service
Commission(JSC) be joined in the case as respondent.

The matter is set for case management meeting today at 9.30 Harare High Court. Whether the Judicial Service Commission will be allowed or not as a party to the case is another issue. My
concern is to hear what the Judicial Service Commission wants to say on Mr Musa Kika’s application.

Few things remain clear from Mr Kika’s application:
i) That Judges must not receive a favours from Executive.

ii) That Judges must be independent from any form of influence or be forced to do something.

iii) That Judges have a fiduciary duty to exercise judicial authority on behalf of Zimbabweans.

These are clear cut arguments of Mr Kika. Now one asks “is the Judicial Services Commission an institute of the state”? The answer is yes it is an institution formed in terms of section 189 of Constitution.

Now section 164.
164 Independence of the judiciary
(1) The courts are independent and are subject only to this Constitution and the law, which they must apply impartially, expeditiously and without fear, favour or prejudice.

(2) The independence, impartiality and effectiveness of the courts are central to the rule of law and democratic governance, and therefore—
(a) neither the State nor any institution or agency of the government at any level, and no other person, may interfere with the functioning of the courts;
It is clear that the Courts are only subject to the constitution and the law.

It is clear that no institute may interfere with the functioning of the courts. Is the Judicial Service
Commission an institute? Yes. Does the law exempt the Judicial service Commission and allow only the Judicial Service Commission to interfere with Courts? No. It is clear no institution must interfere with the independence of Courts.

The mere fact that the same lawyers of the 16 Judges are applying on behalf of the JSC, poses questions on the independence of Judges.

Take it any how. Use the 16 Judges as the “courts,” be it Constitutional Court or Supreme Court.

These Judges do not need assistance of JSC to tell them if having your term extended by executive is a favour or not. That is an independent view of a Court Judge and not a
Commission.

Maybe let’s, look at the functions of the Judicial Service Commission and try to understand their
interests.

190 Functions of Judicial Service:

(1) The Judicial Service Commission may tender advice to the Government on any matter relating to the judiciary or the administration of justice, and the Government must pay due regard to any such advice.
(2) The Judicial Service Commission must promote and facilitate the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice in Zimbabwe, and has all the powers needed for this purpose.
(3) The Judicial Service Commission, with the approval of the Minister responsible for justice, may make regulations for any purpose set out in this section.
(4) An Act of Parliament may confer on the Judicial Service Commission functions in connection with the employment, discipline and conditions of service of persons employed in the Constitutional Court, the Supreme Court, the High Court, the Labour Court, the Administrative Court and other courts.

We can see from the first function that the Judiciary Service Commission tenders advice to the
government and in this case the Minister of Justice who is the main client of Judiciary Service is the
first Respondent. One would think all what the minister was doing was coming from the advise of Judiciary Service Commission. Can we then have the advisor come as separate being to defend his advice? Advise is not law. Some advises end up where we are. Ultimately the Minister has to stand
responsible for the actions. In any case it was going to be different if JSC was standing with Mr Kika
and saying Minister refused its advise. In this case its advise is fully represented. It does not need JSC to come again and state the same thing it advised Minister of Justice
Function two . The Judiciary Service Commission must promote and facilitate Judicial independence. One now wonders, who is Judiciary here between Luke Malaba and 15 other Judges
or the Judges of High Court that must hear this matter and decide over it?

Who needs independence? Which side must the Judicial Service Commission be standing with and promoting?
Is Judicial Service Commission for individual Judges standing as respondents or for Judges presiding
over the matter. Which hand of independence must hold Malaba to the stand and which hand of
impartiality must hold the Judge presiding over the case to the bench? At the end what advice does
the Commission give to the Minister?
And whose interest is Judiciary Service Commission coming to serve?
The personal interest of Judges who must not receive a favour but retire upon attaining 70 or the
minister who they advised to sprint the amendment of constitution in order to cover up its own infidelity or the Judge of High Court who must seat and hear the case and subject him or herself only to the constitution and the law without looking at the status of people involved? Choose
Any normal person must see that the Function of Judicial Service Commission is there to protect the
High Court Judge who shall sit and rule over the matter. This is an every day function of the Commission in every court case. At no time the Commission can stand in support of individual independency before a Court it is managing. Unless the Judicial Service Commission is the
respondent.

Third function is making regulations. That is legislative function. We are not dealing with any of its
regulation. I see no interests based on that.

Fourth function. Lets say it is the employer of Judges. They employ Judges man and woman of ages.

They do not confer a judge with years of life. The constitution says the incumbents cannot benefit from any changes to time limit. What is it that an employer want to come and say on behalf of its employee? Whose interest will this explanation be benefitting? The Judicial Service Commission is
for the benefit of us citizens and not Luke Malaba.

I am still yet to hear their side but again it shows there is lack of separation of powers. A Court is not
a Commission. If Malaba is a Judge of Constitutional Court it does not follow the Judicial Service
Commission is a Court. If Malaba is a Chief Justice it does not mean he can bring every institution he leads into a Court. The matter before Court is, he was born 15 May 1952 and therefore on 15 May 2021 he will be 70 years. By s186(1) of 2013 constitution he must retire, should there be an amendment seeking to change s186(1) the person in office by date of amendment does not benefit
from the amendment in terms of section 328(7). Is receiving a year after attaining 70 a loss or benefit to Malaba? It is benefit. He cannot receive it in terms of section 165(5). Chidyausiku did not
benefit on it.
Hamba Khaya