ZIMBABWE’S Chief Justice Luke Malaba’s has a mountain to climb in his bid to extend his reign beyond 15 May 2021 when he is due to retire at 70: he needs to overcome hurdles around Constitutional Amendment No.1, Constitutional Amendment No.2, senate quorum conundrum, Section 328 of the constitution and the political dynamics involved, The NewsHawks has established.
Malaba — who by operation of law retires at midnight on 15 May 2021 when he turns 70 years old —is trying to extend his stay in office by another five years renewable annually.
However, his audacious bid to extend his reign at the apex of the judiciary will be arduous. There are too many impediments along the way.
Law scholars and practitioners who spoke to The NewsHawks said Malaba faces all these obstacles which must be overcome if he is to stay in office until he is 75.
Last April, the Constitutional Court ruled that the Constitutional Amendment No 1 of 2017, which sought to give President Emmerson Mnangagwa more powers in the appointment of the Chief Justice, his deputy and the Judge President in consultation with the Judicial Service Commission,was unconstitutional.
Zimbabwe made its first amendment to the Constitution adopted by an overwhelming popular vote in 2013 through an Act published in an Extraordinary Government Gazette of 7 September 2017 to commence with immediate effect.
But MDC lawmaker Innocent Gonese and then MP for Harare West Jessie Majome filed a constitutional application seeking the nullification of the parliamentary proceedings that led to the passing of the Constitutional Amendment Bill (No. 1) into an Act.
They argued that when the process was done, the National Assembly and the Senate were not fully constituted.
Justice Paddington Garwe upheld Gonese and Majome’s application, setting aside the amendment on the grounds that a two-thirds majority or quorum was not fulfilled in Senate when the proceedings were conducted.
“It is decided that the passing of the Constitutional Amendment Bill No 1 of 2017 by the Senate on August 1, 2017 was inconsistent with the provisions of s328(5) of the constitution, to the extent that the affirmative votes did not reach the minimum threshold of two-thirds of the membership of the House,” Justice Garwe ruled.
“Constitutional Amendment Bill (No 1) of 2017 is declared invalid to the extent of the inconsistency. The declaration of invalidity shall have effect from the date of this order, but is suspended for a period of one hundred and eighty-eight days, subject to the provisions of paragraph 1(b).
“The court directed Senate to conduct a vote in accordance with the procedure for amending the Constitution prescribed by s328(5) of the Constitution within 188 days of this order, failing which the declaration of invalidity of Constitutional Amendment Bill (No 1) of 2017 in paragraph (1) shall become final.”
Following the lapse of the 188 days, an application was made to the Constitutional Court to allow the process to resume.
Although judgment on that is still pending, The NewsHawks understands the court is expected to grant an extension on the matter for Senate to deliberate on. But the issue of a quorum still remains a snag for Malaba.
Lawyers who spoke to The NewsHawks said the stalling of Constitutional Amendment Bill (No. 1) will thus present Malaba with a new stumbling block as he seeks to extend his stay.
Malaba needs this amendment to allow President Emmerson Mnangagwa to appoint him without going the process of public interviews. All Mnangagwa needs to do is to consult the Judicial Services Commission (JSC) as the late former president Robert Mugabe used to do under the old constitution.
Legal sources said the Chief Justice is now racing against time to get Constitutional Amendment Bill (No. 2), which he needs to extend his stay in office beyond his retirement.
The amendment is yet to go through parliamentary processes. Only slightly over two months remain to steer the convoluted processes through various stages.
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.
“Even if Constitutional Amendment Bill (No.2) is gazetted before midnight May 15, the question of Section 328 will still arise,” a constitutional law expert said.
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.
However, another law expert said this week the meaning and application of Section 328 is debatable. “Read it properly and you will see that there are loopholes in it that might allow Malaba to sneak in through an extension if the two amendments go through. I will write you an analysis and critique on that soon,” the lawyer said.
Beyond that, Senate stands in Malaba’s way as some senators have not been attending to parliamentary business due to ill-health, while others have died. Some have not attended as they would have been engaged in various other activities.
This is how the first amendment failed to get a quorum to pass it.
“The issue of a quorum in Senate and the political dynamics involved in that are probably the biggest hindrance that Malaba faces. This is not just going to be a legal issue, it is essentially going to be a political matter and on that terrain Malaba might not be able to secure the extension that he needs and survive in office beyond retirement age.”