By Brian Mari Matutu
PREAMBLE
(i) All citizens of Zimbabwe regardless of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status are invited to a citizen’s convergence in Lusaka Zambia on a date yet to be confirmed but in December 2021.
(ii) Those who cannot physically be in Zambia are encouraged to give their views through the means that are yet to be agreed on.
(iii) The main reason to meet in Zambia is because our republic is under hostile regime which has blocked all avenues for citizens to converge.
(iv) Since Zambia and Zimbabwe were formerly one state and our people and Zambia share the same umbilical cord no one can say he is in foreign land when he is in Zambia. Even President Mnangagwa has history with Zambia and his own family calls it home.
(v) Having noted that judicial authority in Zimbabwe is only derived from of Zimbabwe as enshrined in section 162 and is vested in courts
(vi) Having noted that Zimbabwe adopted a National Constitution and this being in line with ICCPR Article 1.1 “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
(vii) And In 2013 through a declaration which we called “Preamble” we collectively stated the following “We the people of Zimbabwe, , United in our diversity by our common desire for freedom, justice and equality, and our heroic resistance to colonialism, racism and all forms of domination and oppression Exalting and extolling the brave men and women who sacrificed their lives during the Chimurenga / Umvukela and national liberation struggles, Honouring our forebears and compatriots who toiled for the progress of our country, Recognising the need to entrench democracy, good, transparent and accountable governance and the rule of law , Reaffirming our commitment to upholding and defending fundamental human rights and freedoms, Acknowledging the richness of our natural resources, Celebrating the vibrancy of our traditions and culture s , Determined to overcome all challenges and obstacles that impede our progress, Cherishing freedom, equality, peace, justice, tolerance, prosperity and patriotism in search of new frontiers under a common destiny, Acknowledging the supremacy of Almighty God, in whose hands our future lies, Resolve by the tenets of this Constitution to commit ourselves to build a united, just and prosperous nation, founded on values of transparency, equality, freedom, fairness, honesty and the dignity of hard work, And, imploring the guidance and support of Almighty God, hereby make this Constitution and commit ourselves to it as the fundamental law of our beloved land.”
(viii) And in our section 1 of the constitution declared the status of our state as “Zimbabwe is a unitary, democratic and sovereign republic.”
(ix) Whereas section 2 stated the supremacy of the constitution as follows “Supremacy of Constitution(1)This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.(2)The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative and judicial institutions and agencies of government at every level, and must be fulfilled by them.”
(x) And Section 35 of the constitution states as follows “(1) Persons are Zimbabwean citizens by birth, descent or registration. (2) All Zimbabwean citizens are equally entitled to the rights, privileges and benefits of citizenship and are equally subject to the duties and obligations of citizenship. 3)All Zimbabwean citizens are entitled to the following rights and benefits, in addition to any others granted to them by law—(a)to the protection of the State wherever they may be;(b)to passports and other travel documents; and(c)to birth certificates and other identity documents issued by the State. (4)Zimbabwean citizens have the following duties, in addition to any others imposed upon them by law—(a)to be loyal to Zimbabwe;(b)to observe this Constitution and to respect its ideals and institutions;(c)to respect the national flag and the national anthem; and(d)to the best of their ability, to defend Zimbabwe and its sovereignty.”
(xi) It is at this juncture that every citizen must take note and realise the obligations and duties bestowed equally upon each one of them.
(xii) It is at this juncture that every citizen of Zimbabwe from all walks of life, the lawyers, jurists, civil societies, religious organisation, civil societies, law societies , labour unions , business communities and any social grouping in Zimbabwe in order to ensure that any person claiming a remedy against any violation of his or her rights shall have his/her right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of our State, and to develop the possibilities of judicial remedy;
(xiii) It is at this juncture we present the full details of the total collapse of judicial authority and absence of a constitutional court bench established by section 166 of the constitution.
(xiv) It is further highlighted that there are political appointees masquerading as Constitutional court bench and have given judgements from 23 May 2020 which is the last date the paragraph 18(2) of Sixth Schedule transitional Constitutional Court’s life expired.
(xv) It is further highlighted that there is a standing High Court judgement against all Supreme Court judges and those that are masquerading as Judges of Constitutional Court.
(xvi) Further than that it is noted that these said judges appealed the High Judgement with the Supreme Court but there is no independent judge to hear the appeal, however during High court case the said judges never submitted anything as response.
(xvii) It is further noted that a litigant approached Constitutional Court on an attempt to reverse the High Court Judgement. An illegitimate bench without authority sat as constitutional court.
(xviii) It was Highlighted to this illegitimate bench that they cannot all sit to hear a matter in Constitutional court.
(xix) However the bench refused recuse itself and said it is going to proceed to hear the matter and give a judgement.
(xx) It is pointless for whole nation to wait for a verdict of an illegitimate bench to decide if it is legitimate.
(xxi) The legitimacy comes from the constitution we all voted for as Zimbabweans and the authority can only and only come from us.
(xxii) This is why we must converge and look at the following and then come up with a way forward, bearing in mind that no one else beside us as citizens can resolve this issue.
THE CRISIS
1) To lay out the points, one must first show that there are three kinds of authority that are only driven direct from people of Zimbabwe and no where else. This is the critical point to first understand.
i) Section 88 direct as follows “1)Executive authority derives from the people of Zimbabwe and must be exercised in accordance with this Constitution.(2)The executive authority of Zimbabwe vests in the President who exercises it, subject to this Constitution, through the Cabinet.
ii) Section 117 direct the legislative Authority as follows, “(1)The legislative authority of Zimbabwe is derived from the people and is vested in and exercised in accordance with this Constitution by the Legislature.(2)The legislative authority confers on the Legislature the power—(a)to amend this Constitution in accordance with section 328;(b)to make laws for the peace, order and good governance of Zimbabwe; and(c)to confer subordinate legislative powers upon another body or authority in accordance with section 134”
iii) Section 162 confers judicial authority as follows “Judicial authority derives from the people of Zimbabwe and is vested in the courts, which comprise—(a)the Constitutional Court;(b)the Supreme Court;(c)the High Court;(d)the Labour Court; (e)the Administrative Court;(f)the magistrates courts;(g)the customary law courts; and(h)other courts established by or under an Act of Parliament.
iv) The authorities given to public officers is further guided by section 196 which state as follows “(1)Authority assigned to a public officer is a public trust which must be exercised in a manner which—(a)is consistent with the purposes and objectives of this Constitution;(b)demonstrates respect for the people and a readiness to serve them rather than rule them; and(c)promotes public confidence in the office held by the public officer.(2)Public officers must conduct themselves, in public and private life, so as to avoid any conflict between their personal interests and their public or official duties, and to abstain from any conduct that demeans their office.(3)Public officers in leadership positions must abide by the following principles of leadership—(a)objectivity and impartiality in decision making;(b)honesty in the execution of public duties;(c)accountability to the public for decisions and actions; and(d)discipline and commitment in the service of the people.
v) Section 165(2) clears doubt on the authority of judicial officers and states as follows “165(2)Members of the judiciary, individually and collectively, must respect and honour their judicial office as a public trust and must strive to enhance their independence in order to maintain public confidence in the judicial system.”
2) After showing clearly the three kinds of authorities as driven from us citizens, clearly showing the boundaries of each authority and where the said authority is vested, clearly showing the source of authority in every office bearer and limits of the authority, you go a step further to clearly show that
i) The office bearers manning the Constitutional court have no judicial authority flowing from constitution.
ii) Citizens have no remedy of a legitimate constitutional court established in terms of section 166.
iii) Should there be unconstitutional decisions by President or Parliament the people of Zimbabwe have no Constitutional court bench established by law to approach.
iv) Should there be election disputes on election of President there is no constitutional court bench to approach.
v) Should there be any violation of a right in the bill of rights litigants have no constitutional court bench to approach.
vi) The president is vested only with executive authority and no legal authority. He cannot give what he does not have. Unlike in previous constitution where president was a first citizen who is above others, the current constitution put us as equal citizen and have equal rights and duties before the law.
vii) The legislature is only given legislative authority. Again it cannot give what it does not have.
3) The above points put it bare that where there is a short coming or a constitutional disorder in Judicial authority, then only and only citizens of Zimbabwe can restore it. No amount of intimidation or delay or abuse of other state arms can change this or bring order but only converging and forging a way forward.
4) Because each citizen has equal right and duty no matter where he or she is, it calls for a convergence of citizen to deliberate on the judicial authority and that is of no doubt off line or off rail.
5) This is were I need legal minds within us to also help and be apolitical like we see with some of them.
6) May we be reminded as citizens of Zimbabwe that we adopted a new Constitution in 2013 and repealed the old Lancaster House constitution. This is in line with article 1 of the ICCPR.
7) In the old Constitution we did not have a Constitutional court. Our highest Court before 2013 was the Supreme Court and all Judges in that Court were Supreme Court Judges by appointment. The Chief Justice and Deputy Chief Justice were administrative posts occupied by Judges of Supreme Court.
8) Through a Schedule of transition from old constitution to new constitution, all matters were transferred to new constitution. Each item in the judiciary arm of state was specifically directed, from tenure of office bearers who were manning offices, to courts themselves, to cases before courts. All was expressly stated on how it will be handled and how office bearers would change offices as well as how vacancies in courts were to be filled. We collectively voted for that constitution.
9) Of note is Schedule six of the constitution. In its paragraph 2, it is clearly spelt that the Schedule prevails, to the extent of any inconsistency, over all other provisions of the constitution.
10) It is upon this background that the attention of the citizens of Zimbabwe is required to take note of paragraph 13 of Sixth Schedule which reads “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.”
11) It is brought before the citizens that Justices Luke Malaba, Elizabeth Gwaunza, Paddington Garwe, Rita Makarau, Ben Hlatswayo, Barrat Patel, Marry Anne Guvava were all Judges of Supreme Court as at 20 May 2013 the date which the new constitution was brought into effect.
12) In the old constitution’s section 86, Judges of Supreme Court would serve a tenure were they retire at the age of 65 and could extend that tenure by 5 years upon application and there was a condition that their tenure could not be terminated or office be abolished until they retire or are removed in terms of that constitution.
13) By reading paragraph 13 of the sixth Schedule it should be clear that from 2013 it was a fact that the above mentioned judges can only serve as Supreme Court judges until they retire. Their tenure is not defined by section 186 of 2013 constitution but by section 86 of old constitution. Any amendment of tenure in section 186 of new constitution has no bearing what so ever to these mentioned judges because they are not even serving under section 186 but section 86 of old constitution.
14) The 2013 constitution section 186 has a tenure for Constitutional Court Judges which is a term of maximum of 15 years, which is not renewable, then a tenure for Supreme Court Judges and High Court Judges who serve until they reach age of 70 years.
15) This tenure is totally different to what is in section 86 of old constitution in everything. Nothing in section 186 of new constitution can be amended and then give effect to the tenure of any of these mentioned judges.
16) Their services is guided in the new constitution by paragraph 13 of sixth schedule. Since sixth schedule provisions override any other provision in the constitution nothing in the body of the constitution concerning tenure of these judges can override this paragraph 13 of sixth schedule. Whether the amendments 1 and 2 of constitution are lawful or not it does not change the fact that these mentioned judges are serving under the tenure in section 86 of old constitution.
17) This removes doubt that Luke Malaba cannot extend his tenure beyond 70 years whether the amendment of 186 is legitimate or not. The tenure in section 86 of old constitution says judges retire at 65 then if they wish to extend they can extend to until the age of 70. The clears doubt that after 15 Malaba cannot be a Judge.
18) As it is clear in section 186 that a constitutional court Judge serve on a fresh tenure that state the years to serve not exceeding 15 years and such tenure is non renewable, it is evident also that section 86 of old constitution on had a tenure of service that is pegged on the age of the judge then extending a tenure of section 86 has no relevance to appointment of one as constitutional court.
19) The constitutional court to be established in terms of section 166 is not a continuation of tenures of some other appointments. It is for judges without any tenure who then sign a fresh contract that is non renewable but not exceeding 15 years.
20) All these judges are serving tenures and cannot serve two tenures at the same time neither the service of one tenure can be transferred to another. Its not provided for.
21) Non of these judges ever retired or resigned from their tenures.
22) In a way of transition, a constitutional court comprising of 9 Supreme Court Judges in terms of paragraph 18(2) of Sixth Schedule to the constitution was constituted.
23) This court had a life of 7 years to May 2020.
24) Should a vacancy arise in that court it was by paragraph 18(3) of Sixth Schedule directed that another judge of Supreme Court would fill the vacancy.
25) It was stated in paragraph 18(2) of Sixth Schedule that there is a section 166 constitutional court. Which means these judges knew from onset they were not section 166 constitutional court judges but they were Supreme Court judges sitting as Constitutional court and a section 166 constitutional court was to be established.
26) Within the first 7 years from 2013 to 2020 vacancies in the office of Chief Justice and Deputy Chief Justice arose and Justice Luke Malaba and Elizabeth respectively who were judges of Supreme court filled the vacancies in the paragraph 18(2) constitutional court in terms of paragraph 18(3) of Sixth Schedule.
27) The Justices mentioned in my point 11 above all served as Judges of Constitutional Court of paragraph 18(2) of Sixth Schedule for the term of 7 years.
28) It is clear that these said judges cannot assume office of Judge of section 166 constitutional court before completing the tenure that was directed by paragraph 13 of Sixth Schedule that they serve in terms of that tenure until they retire.
29) It is also clear that a term of 7 years was prescribed for in the paragraph 18(2) of Sixth Schedule Court making it a term of not more than 15 years and cannot be renewed upon expiry in terms of section 186 of constitution.
30) By reading section 186 it can be seen that upon completion of a non renewable term in Constitutional court a judge can be admitted in into Supreme Court or High Court.
31) These judges did return to Supreme Court after May 2020 and we have judgements they made as Supreme Court judges.
32) It is further brought to the attention of the citizens of paragraph 18(4) of Sixth Schedule which gave right to Rules of Constitutional Court.
33) The said paragraph clearly states “until such time”, this clears doubt we all knew that separate and proper section 166 constitutional court was to be established and the paragraph 18(2) of sixth schedule was not the actual constitutional court.
34) In 2016 Rules of Constitutional Court were established cited as SI 61 of 2016
35) Through the Statutory Instrument cited, A constitutional court is defined as “ the Constitutional Court established by section 166 of the Constitution” and a “Judge” means a “judge or acting judge of the Court appointed in terms of section 177 of the Constitution sitting otherwise than in open court;”
36) This clears doubt that as of today a constitutional court is only one established by section 166 and judges of such court whether Acting judges or substantive are judges only appointed in terms of section 177.
37) As mentioned Luke Malaba and Elizabeth Gwauza were appointed Chief Justices and Deputy Chief Justices in a paragraph 18(2) of sixth schedule 9 member bench comprising all Supreme court Judges. These two were appointed Supreme court Judges in old constitution. No were else did these two ever took judicial oath of office as section 166 constitutional court judges.
38) After 23 May 2020 they cannot sit as constitutional court judges at all.
39) The five judges who were “sworn in” as Constitutional court judges fall short by the reason we have said that personally they are judges from previous constitution section 86 tenure. The have to finish that before they can sign a new tenure, they served a term that was prescribed in constitution. They cannot renew it by pretending to take an oath again.
40) Above all they do not qualify in terms of section 177(1)(a). To qualify as a Judge of constitutional court of section 166, acting or substantive you must not be a serving judge.
41) These are serving judges of Supreme Court. They do not qualify.
42) However paragraph 18(5) of sixth Schedule is clear that “The Supreme Court of Zimbabwe, the High Court of Zimbabwe, the Labour Law Court and the Administrative Court, as established immediately before the effective date, are constituted respectively as the Supreme Court, the High Court, the Labour Court and the Administrative Court under this Constitution, and any decision of those courts given before the effective date has effect accordingly.”
43) It must be clear to everyone that the courts cited in paragraph 18(5) of sixth schedule were not established by 2013 constitution but they were constituted as courts into the new constitution as they were from previous constitution.
44) When section 162 list courts it is important to note that only section 166 Constitutional court was not established by the effective date.
45) Critical to note that the 7 years given to the 9 Judges of Supreme Court to act as Constitutional Court did expire on 20 May 2020.
46) Only a section 166 Constitutional Court can now sit as a constitutional court.
47) As seen in Statutory Instrument 61 of 2016 a Constitutional court Judge whether Acting or substantive is one appointed in terms of section 177 of Zimbabwe constitution. The current judges were not appointed in terms of section 177 of constitution.
48) May I highlight that section 177(1)(a) shows clear that one qualify as a constitutional court if he/she has sound knowledge of the constitution law and is not a serving Judge.
49) A close look and comparison of section 177(1)(a) with section 178(1)(a) as well as section 179(1)(a) will show you that a person who “is” a judge cannot qualify for post of Constitutional court of 166, whether acting or substantive.
50) This is because other judges have tenures that are linked to age and not term.
51) This critical part removes any doubt that all these Judges cannot hold office as Constitutional Court Judges because they are serving Supreme Court Judges which paragraph 13 of Sixth Schedule clearly states that they must serve as such until they retire. They cannot assume another term or tenure before completing the first one.
52) By looking at the composition of two forms of constitutional Court where a paragraph 18(2) of Sixth Schedule court could only make a decision when the bench has 9 Supreme Court Judges sitting as a court but a section 166 constitutional court can make the same judgement with 3 judges , it clearly shows difference in value and competency in a single judge qualified as a section 166 court Judge as compared to a paragraph 18(2) of Sixth Schedule court Judge.
53) It is a requirement that every person seeking remedy in courts have the matter determined by a competent person, as section 177 shows clearly the qualification of a constitutional court judge as one with sound knowledge of constitutional law, it becomes a requirement that such sound knowledge has to be tested and proven by independent and competent body.
54) If these judges were sitting as 9 judges to decide over a matter that can be decided by 3 judges of Constitutional court appointed in terms of section 177, what makes the remainder 7 competent to do what they were not qualified to do for the past 7 years?
55) A president alone cannot select and appoint judges with sound knowledge of constitutional law. He has no capacity and authority to do so.
56) Besides being illegitimate it can be proven they are incompetent by simply showing that they sat as 9 judges for 7 solid years to decide matters that can be done by 3 judges and they have not acquired any proven credentials beside what they are.
57) It was by design of 2013 constitution that at the end of 7 years from May 2013 a fresh section 166 constitutional court was to be established by appointing fresh judges with fresh tenures and the old supreme court judges return to Supreme court.
58) It is also clear from section 86 of old constitution which these judges are serving on state that it is the post as Judge of Supreme Court that was not to be terminated before expiry of tenure, the post of Chief Justice or Deputy Chief Justice is administrative and could be terminated by demotion
59) It is common cause from section 185 that the Chief Justice and Deputy Chief Justice are the first two Judges of section 166 constitutional Court to take oaths of office from President then the Chief Justice will then swear in other judges of Constitutional Court.
60) It is common cause that Chief Justice Chidyausiku retired in 2017 as a Supreme Court Judge in the paragraph 18(2) of sixth schedule and by paragraph 18(3) of sixth schedule Justice Luke Malaba who was a Supreme Court Judge by appointment replaced him.
61) In turn Elizabeth Gwaunza who is a Supreme Court Judge by appointment replaced the vacancy left Malaba again in terms of paragraph 18(3) of sixth schedule.
62) She never assumed the status of a section 166 constitutional court judge or took judicial oath of office as Judge of constitutional court.
63) She is still a Supreme Court Judge by her appointment. She cannot at all swear in any person as Judge of section 166 constitutional court.
64) She can also not sit as a Judge of section 166 constitutional court even on an acting capacity.
65) While Musa Kika won a case against these judges on tenure of Judges and retirement of Luke Malaba and these Judges are said to have appealed the judgement, their legitimacy in the offices is not based on extension or no extension of tenure in section 186. These judges never served in terms of section 186 but are serving on terms of section 86 of old constitution.
66) This proves beyond doubt that these officers are all illegally in office.
67) Proves that a section 166 constitutional court is yet to be established.
68) From the constitution the judges who can occupy those offices can only come from people outside the bench.
69) Now that there is no legitimate Chief Justice or Deputy Chief Justice to hold interviews for such judges then there is a constitutional crisis.
70) We have seen that Luke Malaba swore in a Judge president of High Court. That exercise is illegitimate. Only a Chief Justice who personally is a Judge of s166 constitutional court can swear in a Judge President of High Court. As seen with all reason given above, Luke Malaba cannot swear anyone as a Judge President.
71) Section 162 of Zimbabwean constitution states clearly that Judicial authority is derived from the people of Zimbabwe. The President is only given Executive authority and cannot confer judicial authority to anyone.
72) Only people of Zimbabwe can restore this disorder.
73) This is where citizen convergence come in. It is not a political agenda but a legal requirement.
74) Since we all have individual views, only a referendum will then decide on what people would have discussed.
75) To conclude, lets all mobilise the Agenda in open and clear and non discriminatory way.
76) National elections for president and parliament cannot happen before this matter is resolved.
77) This is a requirement that every United Nations Member state undertook.
78) To clear doubt that elections 2023 cannot happen before this issue resolved citizens are referred to International Covenant for Civil and Civil and Political Right in that
(i) We are a sovereign state which adopted a constitutions to govern ourselves in line with article 1 which was cited above.
(ii) In article 2 Zimbabwe as a member state of UN which also ratified the ICCPR undertook give Judicial remedy to citizens and all people seeking remedy on violation of rights
(iii) Article 25 of the ICCPR give citizens right to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.
(iv) Without a constitutional court bench appointed in terms of our laws no elections can be held.
(v) This is so because election start from nomination court and may have legal challenges but end by swearing in of the president by a Chief Justice.
(vi) That must seal the debate and have all citizens deliberate on it.
(vii) As we saw it in 2013 when Mr Jealous Mawarire forced election to happen it is clearly possible that UN first Protocol can be approached by a single citizen and as evidence is clear it will be a waste of time
Lets converge.
Lusaka Zambia
December 2021
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