By Brian Mari | Myself, Hon Job Sikhala, Dr Masimba Mavaza and Mr Wilbert Mukori had a debate Sunday night on the Malaba Retirement Judgement. Unfortunately I lost connection for almost the entire interview only to return 5 minutes before the end.
https://youtu.be/7jNp72VF74k
Let me say this, I do not want to debate things where one mixes politics and legal things. Courts are not political forums. It is unfair to scandalise the courts on political cards while failing to bring in technicals.
Here is my comment which I could not share on air: Sorry to Dr Mavaza who is a PhD holder of law but pretends to be a grade R because of political allegiance.
1) The whole mistake in this issue is not only with Zanu as I noticed during interview but also the lawyers representing the case as well as my fellow colleagues on the panel.
2) Once you fail to present the case to Zanu they then take advantage.
3) The point is you do not discus section 186 of the new constitution without referring to section 340 of constitution.
4) It will be a big mistake if Judges also write a Judgement that miss section 340 of the constitution.
5) Section 186 (1) talks of Judges being appointed on a non renewable contract of 15 years and state that they must retire at reaching 70 years and so on. That is called tenure.
6) Talking of amendments or original 2013 constitution on section 186 tenure does not apply to Luke Malaba and the rest of the current bench.
7) The first word to interpret in section 186(1) is “appoint” as in relationship to Luke Malaba and the rest.
https://youtu.be/jZv30sDUyc0
8) This is were you first have to go to section 340 (1) (b)of the constitution.
9) You will see that Luke Malaba was appointed Chief Justice not “in terms of” section 180 of the current Constitution but in terms of section 340(1)(b) that is to say “appoint on promotion”.
10) A Judge is appointed “in accordance with section 180” and not “in terms of section 180.” Read section 180(1) it is clear that Judges are appointed “in accordance with section 180”.
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11) It looks very minor difference to say “appointed in terms of” and then another say “appoint in accordance with” but this is where the difference divide us.
12) Section 180 (1) say “appoint in accordance with this section”. That leaves “terms outside” which means terms are somewhere else. The section is just there for a procedure.
13) The procedure is, one has to first comply with qualifications in section 177.
14) If you read section 177 you will see that one qualify to be a Constitutional Court if “He or she has been a judge of a court with unlimited jurisdiction in civil or criminal matters in a country in which the common law is Roman-Dutch or English, and English is an officially recognised language; “
15) Now you can see that in interviews, people can come from different backgrounds. Some will have been Judges of other Country’s Courts or resigned in previous contracts but in this case, Malaba was a serving Deputy Chief Justice when he was interviewed on 12 December 2016. His qualification as a Judge were from his record of service. He already had a tenure of a Judge of Constitutional Court Judge in his record of service.
16) Malaba did not establish a new tenure by being promoted to be Chief Justice. He was appointed Chief Justice “in accordance with section 180” and not “in terms of section 180.”
17) He was appointed Chief Justice in terms of section 340(1)(b) which is “appointment on promotion”. That removes all the considerations of section 186(1) tenure from Malaba’s tenure.
18) We the go to section 13 of 6th schedule since Malaba’s tenure started from previous Constitution.
19) Section 13 of 6th schedule
20) 13.Any person who, immediately before the effective date, held or acted in a public office under the former Constitution continues to hold or act in that office, or the equivalent office under this Constitution, on the same conditions of service until the expiry of his or her term of office under those conditions of service or until he or she resigns, retires or is removed from office in terms of this Constitution or those conditions of service, as the case may be.
21) Now we know for a fact Malaba was a Deputy Chief Justice just before 2013. In the previous Constitution was also a tenure for Judges in section 86.
22) I am not interested in the obvious retirement conditions in section 86 of old constitution. That will fall into line.
23) I am concerned with section 86(3) of old constitution which is the one that causes the tenure of Judge of Supreme Court and High Court Judges to be carried over to new constitution.
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24) It says offices of Judges of Supreme Court and High Court shall not be abolished without the consent of the Judges. A similar provision is in section 186(6). We are however tracking Malaba’s tenure so his tenure cannot be abolished not because of section 186(6) of current constitution but because of s86(3) of old constitution.
25) This is were we as state in new constitution inherit a Judges tenure from previous constitution by way of 6th schedule. Including their pension savings in terms of section 20 of 6th schedule.
26) Section 2 of 6th schedule emphasise that 6th schedule “prevails, to the extent of any inconsistency, over all other provisions of this Constitution”.
27) This means section 13 Prevails over section 180(1) or section 186(1) or section 328(7).
28) That section 13 of 6th schedule will stay for the rest of the life of the constitution. You cannot amend it or repeal it because it is fulfilling a state obligation to keep the tenure of Judges to the last end of their contract.
29) That obligation can only be fulfilled by way of section 13 of 6th schedule as well as section 20 of same schedule. And it means Malaba “ continued to hold office Judge of Supreme Court/equivalent under new Constitution, on the same conditions of service until he retires”.
30) Since section 13 of 6th schedule is a provision that prevails over any other provision on tenure of all Judges including High Court Judges, that came from previous tenure, its text are final interpretation of what Malaba and his band, including Justice Zhou , should do.
31) In fact they retire at 65 and then elect to carry on for 5 years as in section 86 of previous constitution.
32) What the regime want to amend does not affect any Judge so far because no Judge has yet been purely appointed in terms of section 340(1)(a) under new constitution.
33) The regime went and amended section 180(4) and section 186(1). The fatal mistake they made in all their attempt was failure to interpret word “Appoint” and then fail to distinguish “appointing in terms of” as opposed to “appoint in accordance with”.
34) Tenure of a Judge is a continuation of service from the day you start to be a Judge to the last day you cease by retirement. Changing from High Court and promoted to Supreme Court or Constitutional Court Judge does not change tenure. Tenure is signed for the first time you join.
35) May be that is were I must stress why section 186(1)(b) was put in place.
36) It is known that a Judge of High Court or Supreme Court can apply to be Constitutional Court Judge. He or she must serve as Constitutional Court Judge for 15 years but because he or she is already a Judge with a tenure to serve until he or she turns 70.
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37) If a judge is not yet 70 years upon completion of 15 year term as Constitutional Court Judges, Section 186(1)(b) then says “after the completion of their term(as Constitutional Court Judge for 15yrs), they may be appointed as judges of the Supreme Court or the High Court, at their option, if they are eligible for such appointment”
38) This then stresses the point that 70 years of age in the Constitution is the tenure. Tenure is the right to be a Judge of the courts. It is not guided by changes that happen in between.
39) That is why the state also state that the post will not be abolished in the same tenure clause. If terms of appointment change, they only affect new appointments.
40) Those in office are appointed on promotion, which was always a package of tenure. They expected to be promoted right from day one. They got promoted. That does not bring new tenure.
41) Section 340 finishes it all. Malaba was appointed Chief Justice by promotion appointment. No need to talk about amendments because that amendment never changed the “tenure of existing Judges” . They are already Judges. They cannot be appointed as Judges again. They can only be promoted and that is section 340(1)(b).
42) Serving person’s tenure are normally changed by way of varying or modifying the conditions of service of each individual officer and section 340(1)(e) confirms.
43) However in our instances we have three sources of provisions that give conditions of service.
i) Section 86 of old constitution which is inherited by way of section 13 of 6th schedule
ii) Section 186 of 2013 constitution which is guided by appointments made in terms of section 340(1)(a) . Section 328(7) does not allow incumbent officer to benefit from any changes to conditions in section 186.
iii) It must be noted that section 180 is never a term of appointment. Its just a condition. It does not affect tenure.
iv) The last source is from amendment. That is if it passes the test of validity but still from reading the amendments it is clear that the amendments changed parts of s180 which are just conditions of appointment.
v) These conditions of appointment affect candidates from different backgrounds. Where upon succeeding in interview the appointment is done in terms of section 340.
44) It can be seen section 13 of 6th schedule, section 328(7) and section 340 are all not amended.
45) It means non of the Judges are affected by s186(1) or can benefit from it because no one has yet been appointed in terms of section 340(1)(a) on conditions of s186 of the original or the amended constitution.