By Court Correspondent | The High Court is once again the center of an intriguing legal battle as Mike Chimombe and Moses Mpofu, both accused of embezzling US$7 million, return to court to challenge the use of elderly assessors in their trial. The trial, which was halted earlier this month due to constitutional concerns raised by the defense, has brought to the fore key legal questions regarding the participation of assessors over 70 years old in High Court criminal trials.
Legal and Constitutional Questions
The primary issue at the heart of this case is whether it is legal for assessors who are over 70 years old to sit alongside a judge in a trial. Chimombe and Mpofu argue that the High Court Act does not specify a maximum age limit for assessors, which, according to their defense, creates a constitutional inconsistency. The Constitution, after recent amendments, sets the maximum age limit for judges at 75 years, up from the previous 70 years. The accused claim that this age limit should be extended to all judicial officers, including assessors, serving in the High Court.
Historically, assessors play an advisory role in High Court trials. The High Court typically sits with two assessors in criminal cases, where the judge handles questions of law, while both the judge and assessors contribute to questions of fact through a majority vote. This structure is designed to provide a check on judicial authority by incorporating community perspectives into fact-based decisions.
However, Chimombe and Mpofu’s case raises a constitutional argument—whether there is an implicit requirement that assessors, as judicial officers, must adhere to the same age restrictions as judges. The prosecution has countered that no legislation, including the High Court Act or the Customary Law and Local Courts Act of 1990, specifies any age limit for assessors. The defense is pushing for the High Court to examine this question and, if necessary, seek a referral to the Constitutional Court.
The High Court Act does not contain provisions regarding age limits for assessors. It only stipulates that in criminal cases, the judge is assisted by two assessors who help determine questions of fact. There is no mention of age qualifications or restrictions. Similarly, the Customary Law and Local Courts Act of 1990, which governs the appointment of assessors in community courts, does not impose age limits. This creates a potential gap in the legal framework concerning the role of assessors, particularly in higher courts.
The defense’s argument rests on the interpretation of the age limits for judges outlined in the Constitution. Section 186(1) of the Constitution, which applies to judges, mandates that no judge may continue to serve beyond the age of 70, unless reappointed for an additional five years. The defense seeks to extend this provision to assessors, arguing that assessors, being part of the judicial process, should fall under similar age restrictions to ensure fairness and alignment with constitutional principles.
The prosecution, however, argues that the Constitution’s provisions specifically apply to judges and do not extend to assessors, whose roles are advisory in nature. They maintain that the application for referral to the Constitutional Court lacks merit, as no law specifically limits the age of assessors. This argument is supported by current legislation, which remains silent on age restrictions for assessors, leaving a potential gray area in the law.
In previous cases where constitutional questions have arisen, such as Mugabe v Mnangagwa (2017) and Tomana v Zimbabwe Anti-Corruption Commission (2016), the Constitutional Court has entertained referrals when significant constitutional issues were raised. Whether the age of assessors constitutes such a significant issue remains to be seen, but the current legal framework does not support the defense’s claim for an age limit.
The High Court is expected to decide whether this constitutional question merits a referral to the Constitutional Court. The prosecution argues that no specific law limits the age of assessors, potentially leading to a dismissal of the defense’s request. However, the case highlights a critical technicality in Zimbabwe’s judicial system, where gaps in legislation can lead to constitutional challenges.
Should the High Court rule in favor of Chimombe and Mpofu’s request, the Constitutional Court will need to address this legal ambiguity and provide clarity on the age limits for assessors. Such a ruling could set a precedent for future trials and could potentially reshape the structure of the High Court in terms of who qualifies to serve as an assessor. The outcome of this case could have far-reaching implications for the future of judicial processes in Zimbabwe.