The Sunday Mail
David Tinashe Hofisi
THE High Court released the full judgement by Justices Happias Zhou, Jester Charewa and Edith Mushore regarding judicial tenure in light of the second Amendment to the Constitution.
This article discusses its findings regarding term-limits and human rights violations.
Term-limit and age limit provisions
The central part of the judgement rejects the distinction between age limits and term limits as advanced by the respondents:
“Their argument was that the retirement age stipulated does not limit the term of office of the judges. This argument means that judges of the Supreme Court and High Court have no term limit. That argument is not sustainable. Section 328(1) defines term-limit provision to mean ‘a provision of this Constitution which limits the length of time that a person may hold or occupy a public office’. We therefore come to the conclusion that S 186 is a term limit provision and that it has the effect of extending the length of time that a person may hold the office of judge of the Constitutional Court and Supreme Court.”
This is the full extent of the court’s reasoning.
There is no semantic or epistemic exploration of the constitutional provision, neither is there any rational connection of such exploration with the facts of the case.
The bare text of the Constitution is used to declare that age limits are term limits.
It would appear the Court presumed that any limit to a term of office qualifies as a term limit provision.
This explains the Court’s assertion that, because age limits and term limits both have to do with time, then varying retirement age is varying term limits.
It highlights the pitfalls of generalised arguments which are not anchored in a semantic exploration of constitutional text.
The fact that a retirement age limits incumbency does not make it a term limit provision; and neither does its general relation to time.
Instead, the Constitution requires a term limit to be a limitation in length of time that a person may hold or occupy public office.
The basis for a term limit provision is the length of, and not the general relation to, time holding public office.
Whilst the Court insists that all judges have term limits, this is not the case.
As noted by Victor Ferres Comella, term limits are reserved for the highest court because it has exclusive constitutional jurisdiction.
The origins are in the Kelsenian model of Constitutional Courts, a point made in the Brian Opeskin paper, which was also quoted by the Court.
It is Constitutional Courts that have term limits, beyond which judges can serve in other courts until they reach their age limit.
The High Court and Supreme Court do not have term limits.
They do not have the special powers of the apex court and are thus not bound by a term-limit provision.
This is what Opeskin refers to as a hybrid arrangement, which the Court quotes with approval to illustrate judicial design in Zimbabwe.
Yet Opeskin states that hybrid models comprise age limits and term limits.
He does not claim that age limits are term limits.
By the judges’ reasoning, Zimbabwe would be a hybrid of term limits (by age) and term limits (by fixed term), a ludicrously superfluous tautology.
The High Court erroneously conflated tenure arrangements with term-limit provisions, the absurdity of which is apparent in the following dictum of the Court:
“Life limits (when one dies), age limits (when one reaches a specified retirement age), and a fixed term Iimit (when a specified period of service is reached). These three tenure arrangements are contained in S 186 of the Constitution of Zimbabwe.”
That cannot be true. We do not have life tenure in Zimbabwe.
The US remains one of the few countries which has life tenure.
The Court’s insistence on conflating tenure with term limits leads to such absurdities.
Consider the President, whose length in holding office is limited to two five-year terms.
That is a term-limit provision, created due to the special powers of the President.
This is true of the Prosecutor-General, Commanders of uniformed forces and all other term limited offices.
This cannot be equated to the general retirement age of all members of the civil service.
That age limit is not a restriction in length of time to hold office due to special powers in the civil service.
Rather, it is a reaction to general advancement in age and attendant reduction in cognitive ability, mechanical efficiency and overall productivity.
This distinction applies to our judicial design, with term limited constitutional judges on the one hand and age limited generalist judges on the other.
Clause 186(4)
The Court points to the notwithstanding clause in 186(4) as evidence that the amendment changes a term-limit provision.
Section 186(4) of the Constitution states that the judges of the superior courts, including the Chief Justice and Deputy Chief Justice, will continue in their offices even if the Constitution does not permit incumbents to benefit from changes to a term-limit provision.
According to appeal papers filed, this provision was inserted to make it clear that no changes had been made to a term-limit provision.
It is possible that Parliament inserted this clause due to fear of violating the Constitution.
However, this is irrelevant as it neither means that Parliament was correct nor that such interpretation is the most appropriate.
A correct definition of term limits as distinct from age limits renders the Constitution internally consistent.
Treating all manner of tenure arrangements as term limit provisions has led to the quagmire in which current judges are excluded from operation of the amendment and the attendant needless claims of a constitutional crisis.
South African Judgement
The High Court judgement quotes from the South African case of Justice Alliance of South Africa v President of the Republic of South Africa and Others as evidence that age can, and does indeed define and can be used to extend a term of office:
“It follows that in exercising the power to extend the term of office of a Constitutional Judge, Parliament may not single out the Chief Justice. . .Age is an indifferent criterion that may be applied in extending the term of office of a Constitutional Judge.”
The Court makes the ruling that, since a term of office can be extended on the basis of age in South Africa, the same cannot be done in Zimbabwe due to section 328(7). This is a result of the Court’s conflation of tenure with term limits.
Nothing stops extension of a term of office based on age in Zimbabwe, just as nothing would stop such in South Africa.
It is only term-limit provisions which may not be altered for the benefit of incumbents. Thus, the proper application of the dictum from South Africa would have been acknowledgement that age is an indifferent criterion, distinct from a fixed term, which can be used to extend incumbency.
It must be noted that the South African case dealt with a provision which extended constitutional judges’ tenure beyond the retirement age of 70 as long as they were within the term limit of 12 years or 15 years of active service.
In other words, there is regional precedent for the content of the second Amendment.
Declaration of Rights
The High Court ruled that the continued incumbency of the Chief Justice and extension of tenure for other judges would be in violation sections 56 (1) and section 69 (3) of the Constitution.
Section 56(1) of the Constitution
Section 56(1) contains the right to equal protection and benefit of the law.
The Court engages in a form of deductive reasoning to conclude that this right had been abrogated. It points to Mawarire vs Mugabe in which it was held that failure to uphold a constitutional obligation violated section 18(1) of the former constitution.
Section 18(1) provided the right to protection of the law.
Section 56 (1), according to the Court, is wider than the old section 18 and for this reason, incumbency of a chief justice beyond his retirement age would infringe the right to equal protection and benefit of the law. This interesting syllogism is actually misleading, as is evident from the Court’s dissonant dictum:
“Section 56(1) of the Constitution of Zimbabwe 2013 is wider in its scope than S 18 of the old Constitution. It qualifies the protection of the law with the word ‘equal’; it also adds the entitlement to ‘equal benefit’ of the law which was not there in the old Constitution.”
One need not be a jurist to fully comprehend the effect of a qualifier.
When a provision is qualified, its scope is not broadened, but diminished through restriction to a specific set of circumstances.
Section 56 (1) of the Constitution is not wider than the old section 18.
It is narrower because it is qualified.
There is a general belief that the product of a more people-driven process cannot possibly be more restrictive than its predecessor, yet this is the case in some respects when it comes to the 2013 Constitution.
Whilst the old section 18 was a general protection against illegality, section 56 (1) is a protection against discrimination or unfair differentiation.
It is no longer a general protection against illegality but now guarantees sameness of treatment.
Through the 2013 reform process, our constitutional order was shifted from the Lancaster House constitutions which are replete with provisions to secure protection of law (see the Constitutions of Zambia and Botswana).
Section 56 (1) of the Constitution is identical to section 9(1) of the Constitution of South Africa and approximates to the equal protection clause in the 14th Amendment to the American Constitution.
As both the Constitutional Court of South Africa and American Supreme Court have ruled, these provisions can only be activated in cases of discrimination or some other form of unfair differentiation.
This is because they are equality clauses.
None of this seems to have been considered by the Court, which concluded as follows:
“The applicants are entitled to protection and benefit of the law in the sense of having public office occupied in accordance with and not in violation of the provisions of the Constitution.”
In essence, the court edited the Constitution by removing the word ‘equal’ to make a finding that it contains a general right to ‘protection and benefit of the law.’
There is no such right under the Constitution.
There is only a right to ‘equal protection and benefit of the law.’
The Bill of Rights Handbook, which is referenced in the judgement, provides the test for activating section 9 in South Africa and thus section 56 in Zimbabwe.
It is from the case of Harksen v Lane NO and it begins with the seminal question of whether the law or conduct sought to be impugned differentiates individuals or groups of people.
Without proof of unfair differentiation, there is no declaration which can be made under section 56.
No part of the judgement refers to any form of differentiation or unequal treatment.
In fact, the Court only makes a passing references to the fact that it is concerned with substantive rather than formal equality.
It does not define the two terms neither does it show how the facts of the case relate to infringement of substantive equality.
Whilst formal equality relates to all persons being equal bearers of rights, substantive equality is concerned with actual outcomes and the socioeconomic conditions which make equality a lived reality.
Remarkably, the judgement finds a violation of the equality clause without indicating how incumbency of the Chief Justice would result in inequality, formal or substantive, in respect of any individual or group of persons.
Section 69 (3) of the Constitution
Section 69 (3) of the Constitution contains the right to access courts, tribunals or other forums for dispute resolution.
The judgement rules that the intended extension of judicial incumbency for current judges would undermine independence of the judiciary and the rule of law, more so since the extension is subject to executive approval:
“The intended extension … (has) the effect of compromising on the independence of the judiciary and the rule of law. Significantly, the election to continue in office … is subject to acceptance by the President…This has the effect of subjecting the term of office (or extension thereto) to the control of the Executive.”
On this basis, the Court rules that any extension of the judges’ terms would violate section 69 (3) of the Constitution.
There are two points to note.
Firstly, the judgement impugns an amendment whose validity was not in question.
The Court is not attacking conduct but the actual content of the amendment and thus the Constitution itself.
It finds that the process of extending tenure as provided in the Constitution is contrary to the Declaration of Rights.
This is a truly remarkable finding as it is contrary to constitutional canon.
The Constitution can never be understood to be internally contradictory.
It is a consistent, coherent document whose provisions all inhere with constitutional supremacy.
As the Constitutional Court stated in Madzimure and Others v Senate President and Others CCZ8/19:
“The ancillary question is whether an act done in terms of the provisions of the Constitution can violate a person’s rights in terms of the same Constitution. The question is answered in the negative. An act lawfully done in terms of the Constitution cannot violate a person’s rights under the same Constitution.”
Thus, the remarks that section 69 (3) would be violated because the constitutional process of extending tenure might be viewed as undermining judicial independence are not sustainable as the Constitution cannot be violative of itself.
Secondly and more importantly, section 69 (3) of the Constitution makes no mention of independence of the judiciary or the rule of law.
It deals only with access to a court, tribunal or other such forum.
The constitution of that forum is not dealt with in that sub-section.
The right to an independent and impartial court is contained in section 69 (1) and (2).
Subsection 3 is only relevant to access.
There is nothing in the judgement which indicates how access to a court has, or is likely to be, restricted.
Typical examples of restrictions to accessing a court include ouster of the jurisdiction of a court, abolishing causes of action and even punitive costs against litigants.
Nothing of this sort is explored in the judgement.
Instead, there is a discussion of independence of the judiciary, which is itself germane to subsections (1) and (2) of section 69 of the Constitution.
This distinction is important because the right to an independent and impartial court is not a generalised right under the Constitution.
It becomes active only when one is accused of an offence or is in the course of determining civil rights and obligations.
It is coterminous with live litigation and is not related to a hypothetical case or abstract notion of independence.
The High Court judgement makes no reference to the live litigation which warrants activating provisions relating to independence of the judiciary.
In any event, such independence is dealt with in provisions which were not cited at all.
The judgement only states that section 69 (3) would be violated due to the earlier finding that sitting judges cannot benefit from the constitutional amendment.
There is nothing in the judgement to indicate how this benefit to sitting judges would result in restricted access to any court, tribunal or any other forum.
There seems to have been a presumption that impugning the composition of a court is synonymous with a claim of restricted access.
This falls short of the requirements under section 69 (3) of the Constitution.
Conclusion
There are many disagreeable parts of this judgement.
It conflates tenure arrangements with term limit provisions, treats the new section 56 (1) as if it were the old 18 (1) and presumes access to courts is restricted by perceived challenges to judicial independence.
Generalised and superficial arguments are advanced without sufficient anchor in, and particularised reference to, the Constitution.
It shows the limits of generalist approaches to the specialised process of constitutional adjudication.
This is true even though the judgement’s author does not self-identify as a generalist, having indicated during public interviews that constitutional law is his area of interest and specialised training.
Establishing a stand-alone Constitutional Court is meant, in part, to ensure that constitutional adjudication is not subject to such pitfalls and remains unified by having one expositor of constitutional meaning.
David Tinashe Hofisi is a human rights lawyer, YALI Mandela Washington Fellow, ILS Law and Society Graduate Fellow and blogger.
