ZIMBABWE’S Chief Justice Luke Malaba – who by operation of law retires at midnight on 15 May 2021 when he turns 70 years old – faces the biggest question of his long professional career as a judicial officer: to go or not to go?
Current constitutional provisions set the maximum age limit of judges at 70 years – meaning Malaba automatically retires on 15 May 2021 midnight. This applies across the board, without exception.
However, those close to the calm and soft-spoken man who currently sits at the zenith of the judiciary, the third arm of the state, together with the executive and the legislature, say he is profusely sweating over this issue.
He has lost his cool as he is anxious to know his fate, informed sources say.
“The Chief Justice is in a big dilemma,” a top ministry of Justice official told The NewsHawks. “The issue is he is supposed to retire in May, but he doesn’t want to go. He wants the constitution amended – Constitutional Amendment (No.2) – for him to benefit and stay on when he is the incumbent. This is a big constitutional and political conundrum.”
While Malaba, whom lawyers and legal analysts say made significant contributions to the judiciary, jurisprudence and law development in Zimbabwe, despite recent unsavoury incidents which showed political interference and judicial capture, can make life easier for himself by just retiring, the problem is that he wants to hang onto power.
A veteran legal practitioner said Malaba should retire to protect his legacy and integrity of the judiciary.
The judiciary, which interprets the laws and protects the constitution — thus entrenching constitutionalism— is the cornerstone of democracy.
“This is an important issue,” the legal guru said. “It is as much about Malaba, the Chief Justice, as it is about the integrity of the judiciary and constitutionalism; democracy and the rule of law.
“At a personal level and in terms of performance and legacy, Malaba is a good-natured person and a professional. He has done a lot of good things for the judiciary and this country. His reforms are significant. His contributions to jurisprudence and law development are also important. In other words, he has helped to build a culture of constitutionalism despite the current challenges. But what he is now trying to do will damage his reputation and his legacy. It will hurt the integrity of judges and the judiciary, and erode constitutionalism. The consequences of his decision will be far-reaching. That is why he should just retire.”
Checks by The NewsHawks show Malaba made many positive contributions. He improved the qualitative and quantitative performance of judges on delivery. He also demanded efficient and quality judgments with strict supervision and accountability.
“The qualitative and quantitative performance of judges improved under him,” a senior judicial officer told The NewsHawks.
“Access to justice also widened and improved. He took the courts to the people through decentralisation and improvements of the working conditions in the courts. For instance, he opened the Mutare High Court, decentralised the Master of High Court and Office of the Sheriff, and commissioned new courts in townships, including in Epworth.
“He also opened the New Labour Court; specialised commercials courts and made renovations of the courts around the country, in Harare, Bulawayo, Mutare, Gweru and Masvingo, among other places. Malaba also introduced e-justice; the integrated electronic case management system that will see Zimbabwe having its first paperless court. Overall, he improved the justice delivery system.
“That is on administration and leadership; yet as a judge he also made a number of important judgments – so his contribution is great.”
However, one senior lawyer said while Malaba contributed a lot, the downside was equally bad. Of late, he has done huge damage to the reputation of the judiciary through many controversial actions.
“I understand all those achievements, but the negative aspects, first of trying to hang onto power, and second of compromising the judiciary, are serious,” the lawyer said.
“Since the coup and the elections, he came in as a captured judge. Remember his judgment that (the late former president Robert) Mugabe resigned voluntarily – through a coup – in a bid to legitimise and protect Mnangagwa’s administration after the (Justice George Chiweshe) ruling also legitimising the coup?
“Then there is the disputed 2018 presidential electoral petition. He reportedly whipped judges into line to help out Mnangagwa again. After that it has been a series of controversies. For example, that circular to judges which said judgments must first be seen by the head of the court. I know the idea was to ensure judgments are delivered timeously, but he also wanted supervision as in control and subtle intimidation.
“There is also the issue of circulating judgments of the Supreme and Constitutional Court benches among all judges in those courts before they are delivered. This is designed and calculated to make sure he sees all the judgments before they are delivered since he is a member of those courts. It is a subtle way of trying to psychologically and practically pressure and control judges, obviously for political purposes.
“This is a bad practice. It undermines the integrity of judges, judicial independence and institutionalises interference and control. Malaba used to write well-reasoned and interesting judgments, including separate and dissenting rulings. But under him now there are no separate and dissenting judgments anymore. Why? Because he has allowed capture of the judiciary. So for me, he has a mixed record.”
While lawyers may differ over Malaba’s legacy, they certainly agree on one thing: he must retire. Yet he badly wants to stay on.
This was evident in his official opening of the 2021 Legal Year on 11 January last month. Despite that being his last official address, he did not make it his valedictory speech, showing he is hoping to hang on.
By contrast, Chidyausiku delivered a valedictory speech on 16 January 2017.
But for Malaba to stay on, The Constitution of Zimbabwe Amendment (No. 2) Bill [H.B. 23, 2019], gazetted on 17 January 2021, must be passed into law first.
Public consultations on the Bill were held from 14 June 2020 to 19 June 2020. The amendment process is still on.
If passed, the amendment will allow the President to extend the tenure of a judge who has reached the age-limit by up to five years through options of one-year extensions at a time.
This further consolidates the power of the President, while weakening the separation of powers and state institutions, as well as democracy.
Already, The Constitution of Zimbabwe Amendment (No. 1) Act, published in a government extraordinary gazette on 7 September 2017, gives the President power to appoint the Chief Justice.
It reverts to the old authoritarian constitutional dispensation, rejecting the current democratic one.
Overall it allows the President to appoint the Chief Justice, the deputy Chief Justice and the Judge President of the High Court after consultations with the Judicial Service Commission.
Appointment of other judges remains the same – through public interviews.
But then again, there is a new problem.
Even if the second amendment is passed into law, the constitution does not allow the law to be applied in retrospect, meaning incumbents cannot benefit. It is for future application.
So there is a serious moral hazard and political risk for Malaba in all this.
Section 328 of the constitution which provides that “an amendment to a term-limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply to any person who held or occupied that office, or an equivalent office, at any time before the amendment”.
A “term-limit provision” is defined as “a provision of this constitution which limits the length of time that a person may hold or occupy a public office”.
The provisions which set the maximum age limit of judges restrict the length of time that a person may hold or occupy office as a judge, which is a public office.
This was done to prevent precisely what Malaba is trying to do –self-serving amendments to benefit incumbents. So Malaba can only stay on if Section 328 of the constitution is also amended, which will be unprecedented.
Age-limits ensure judges enjoy security of tenure throughout their term. When a judge is given extensions — at the behest of the President — he loses his or her independence as they will always have to pander to the whims and caprices of the appointing authority who has discretion on renewals for fear of disappointment.
That judges beyond 70 years would need a certificate of fitness to get an extension is academic as the President retains the power to appoint or disappoint.
This translates into heightened vulnerability for the judge.
If Malaba is given the extension, that will drive the final nail into the coffin of judiciary independence, integrity of judges and justice delivery in Zimbabwe.
Malaba came into office on 27 March 2017 under Mugabe, who actually wanted Justice Rita Makarau to take over from Chidyausiku.
Before that, he had been acting chief justice.
Chidyausiku’s succession was mired in partisan political battles in a toxic environment.
Mnangagwa and his Zanu PF military-backed faction, which later ousted Mugabe through a coup in November 2017, wanted to seize control of the judiciary for political reasons– to underwrite the coup.
The adoption of the age-limit was to ensure certainty and transparency in judicial retirement and succession processes as it guarantees security of tenure from start to finish. Beyond that, it is a slippery slope.