Brian Mari: “Dr Alex Magaisa’s BSR Misleading”
23 May 2021
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Former Chief Justice Luke Malaba

By Brian Mari | I read Dr Alex Magaisa’s BSR of today and I feel if his BSR is taken as it is, it will mislead the nation and create much more problems than we have.

When I gave my comments right on his TL I got some back lashes. I felt I should do a comprehensive article and invite Dr Magaisa to also comment.

Here is a part of what Dr Magaisa said:
“The government should have changed section 328(7) of the Constitution to say an amendment to a term-limit provision can benefit current or past officeholders. However, to do that, it is not enough to have a two thirds majority in parliament. The effect of section 328(9) of the Constitution is that there must be a referendum. Therefore, effectively, a change to a term-limit provision which extends that term requires a referendum”

While we must all agree that Malaba should have gone either by age limit or term limit it is wrong for us to twist things when we cannot find an explanation on things.

In our constitution there are two forms of Constitutional court. The first being s18(2) of 6th schedule. This court comprised of Chief Justice, Deputy Chief Justice and 7 judges of Supreme Court. This court had a term of 7 years. Should there be a vacancy in this Court in the first 7 years it could only be replaced by Judges of Constitutional Court.

The second form is section 166(1). This Constitutional Court comprised of The Chief Justice, Deputy Chief Justice and five Judges of Constitutional court. The qualification of one to be appointed as a Constitutional court Judge is the most critical part that is missed by both the regime and Dr Magaisa.

For a section 18(2) of 6th schedule appointment, one had to be a Supreme Court Judge as guided by section 18(2)&(3) of 6th schedule.

As for a section 166(1) court judge section 177 will guide. Now observe the wording of section 177(1)(a).

“A person is qualified for appointment as a judge of the Constitutional Court if he or she is a Zimbabwean citizen, is at least forty years old and has a sound knowledge of constitutional law and, in addition, possesses one of the following qualifications—
(a) 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; or
(b) for at least twelve years, whether continuously or not, he or she has been qualified to practise as a legal practitioner—
(i) in Zimbabwe; or
(ii) in a country in which the common law is Roman Dutch or English and English is an officially recognised language; and is currently so qualified to practise.
(2) To be appointed as a judge of the Constitutional Court a person must be a fit and proper person to hold office as a judge.

These qualifications look very obvious and have nothing to do with issues to do with term limits yet this is the crucial point and a short word that is short in this provision changes everything. The qualifications of being appointed as a Judge of s166 Constitutional court are clear and have not been amended. “No serving Judge is appointed as Constitutional Court Judge in terms of s166(1). Section 177(1)(a) is clear that in “tense” that one should have been a Judge of unlimited jurisdiction. It does not suggest a serving Judge is included in the qualification. This is made clearer by section 178 (1)(a)
178 Qualifications of judges of Supreme Court
(1) A person is qualified for appointment as a judge of the Supreme Court if he or she is a Zimbabwean citizen and at least forty years old and, in addition—
(a) is or 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; or
(b) for at least ten years, whether continuously or not, he or she has been qualified to practise.

It can be seen that section 178(1)(a) uses the words “is or has been” a judge of ….This shows clearly the section 166(1) constitutional Court does not appoint serving Judges from Judicial Services to be Constitutional Court. It’s a short short word that brings the whole thing in debate to change.

It is clear from this qualification that any person above 40 years can be appointed as a Judge of Constitutional Court. Whether one goes through interview or is hand picked as what the regime wants to put in. The point is all Constitutional Court Judges are appointed from outside Judiciary Services. These Judges are given a term that must not be renewable and must not exceed 15 years.

If before 15 years a Constitutional Court judge attains age of 70 he will retire early in terms of s186(1)(a) as Dr Magaisa correctly say

However if the Constitutional Court Judge completes his term of 15 Years he can be admitted into Supreme Court or High Court at their opinion in terms of s186(1)(b) of original provision.

Now lets go to see the issue of term limits first. If the regime is arguing that it did not extend the term limit but age limit, one has to take the definition in s328 which Dr Magaisa is relying on and put it here “term-limit provision ”means a provision of this Constitution which limits the length of time that a person may hold or occupy a public office.”

This definition talks of length of time one can occupy an office. This means you need to identify the person and the office. In this case we are talking of post of Constitutional Court Judge. This is the office in question and not just being a judge. Now going to section 186(1) and section 18(2) of 6th schedule you will see that this office is occupied only on term limits. The term limits are non renewable.

Instead of going to look for s328(7) and try to fight if Malaba’s age limit can serve him or not you go to Malaba’s term limit in the Constitutional Court. He was appointed into Constitutional Court as a Judge of previous Supreme Court where he held post of Deputy Chief Justice. The term of that Court was 7 years. All the Judges who served the term with him were from previous Supreme Court.

The term got finished in May 2020 and it is non renewable.

It must never ever be missed by Dr Magaisa that the judges in question are not judges appointed to the posts of Supreme Court Judges by present Constitution.

These are Judges inherited from previous constitution section 86. In that provision it was a condition that their posts will not be abolished.

It will be wrong to argue the tenure of these Judges by referring to section 186 of new constitution, whether amended or not. Section 186 has no one so far to be affected by it. Whether it is amended or not it has never been applicable to these judges in office.

This is where I say Dr Magaisa is also misleading people.

The judges appointed in old constitution by s86 did not retire at 70. They retired at 65 and if one elect to continue then he or she will serve up to 70.
86 Tenure of office of judges
(1) Subject to the provisions of section 87, a judge of the Supreme Court or the High Court shall retire when he attains the age of sixty-five years unless, before he attains that age, he has elected to retire on attaining the age of seventy years:

Provided
(a) an election under this subsection shall be subject to the submission to and acceptance by, the President, after consultation with the Judicial Service Commission, of a medical report as to the mental and physical fitness of the judge so to continue in office;
(b) the provisions of this subsection shall not apply to an acting judge or a judge who has been appointed for a fixed period of office;

This is the provisions which the judges we are talking of were appointed on. The same conditions that were used to appoint each judge were transferred into new constitution by way of section 13 of 6th schedule.

Existing officers

  • 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.This is the provision which guide the tenure of the judges that are in office as we speak.

  • The moment you introduce arguments of section 328 in the main constitution you cover the main aspect of these judges. Their fate was decided already by a referendum. There is no referendum that is required to decide.
  • Section 2 of 6th schedule states it clear that 6th schedule prevails over all other provisions of the constitution.
  • This removes doubt on what must happen to these judges.
  • The misleading part of Dr Magaisa’s whole debate
    i) is to assume that the Judges currently in office were appointed under conditions in section 186 then start to compare provisions of amendment of section 186 and s328. No.
  • These judges were appointed Judges under old constitution and section 13 of 6th schedule guide on their tenure.
    ii) He also assumes that a term limit is the same as age limit because age limit seek to extend time a judge can be in office for a judge in general yet section 18(2) of 6th schedule and s186(1) set two term limits on two forms of Constitutional Court and the two term limits are not renewable.
  • In section 186(1)(b) it is clear that if a term is finished but age limit is not yet reached the judge is removed from Constitutional Court. If Dr Magaisa had correctly identified Malaba’s term limit in Constitutional Court as defined by s18(2) of 6th schedule, there was no need to talk of s328(7) because Malaba’s term expired in May 2020 and his age limit in terms of section 13 of 6th schedule expired on 15 May 2021
    iii) He also miss the point that Malaba and all the Supreme Court Judges that were judges of constitutional Court served their full term of 7 years and that term is non renewable. Where upon finishing the term they were readmitted into Supreme Court by section 186(1)(b) of original constitution.

  • iv) He also misdirected himself by using section 328 definition of term limit to mean same as age limit. This has an effect of giving excuse of those below age of 70 but were appointed judges of Constitutional court same day as him feel as if section 186(1)(a) is the only applicable for extending term.
  • Actually whether one has not turned 70 or not, the term limit is non renewable as s186(1)(b) states. Justice Elizabeth Gwauza, Paddington Garwe, Rita Makarau, Anne Gorowa, Ben Hlatshwayo, Barrat Patel all served a 7 year term as Constitutional court Judges and cannot continue as Constitutional court Judges.

  • v) The most critical for all is that s177(1)(a) is clear that qualifications of s166(1) constitutional court Judges does not include serving Judges. After 22 May 2020 any appointments of Judges of constitutional court does not include a serving judge but only former judge.
  • I hope Dr Magaisa will see the big difference in section 177(1)(a) and section 178(1)(b) created by two letter word “is”. In section 177(1)(a) there is no “is” but only “has been”. This shows clear that serving Judges are no candidates for Constitutional Court appointments. This then removes the question of tenure of these judges as Constitutional Court Judges. They are not eligible for appointment

  • vi) This is why I say Dr Magaisa’s BSR is misleading