Judicial tenure in light of lates Zimbabwean High Court ruling

On 15 May 2021, the High Court declared that the retirement age of judges amounts to a term-limit provision whose amendment cannot benefit current judicial incumbents. As a consequence, the Court ruled that Chief Justice Luke Malaba’s tenure ceased when he attained the retirement age of 70 (his election to serve a further five years notwithstanding). This post considers this judgement in light of the Constitution and its bearing on judicial design in Zimbabwe. 

1. Effect of Section 328(7) of the Constitution 

Section 328(7) of the Constitution prevents extension of tenure for sitting public officers through amendment of a term-limit provision. The provision states that;

Notwithstanding any other provision of this section, 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 in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.

There are two crucial points to note about this provision. The first is that the Constitution permits amendments to term-limit provisions. What is prohibited is extending sitting public officers’ tenure in terms of such amendments. The second point is that sitting public officers can have tenure extended via constitutional amendment as long as the amendment does not affect a term-limit provision. It is not the fact of extended tenure which the Constitution prohibits, but doing so through alterations to a term-limit provision for the benefit of incumbents. This makes the definition of a term-limit provision crucially important for understanding the content and effect of the 2nd Amendment.

2. What is a term-limit provision?

Section 328(1) of the Constitution states that;

“term-limit provision” means a provision of this Constitution which limits the length of time that a person may hold or occupy a public office.

In other words, a term-limit provision circumscribes the length of time for which public office may be held or occupied.  The provision is in two dimensions. The first dimension is a limitation in length of time. It is not a general, non-specific effluxion of time. Rather, it is a periodized interval which is precise to denote the length of time for which incumbency is permitted. This length of time must be apparent from the provision. For this reason, when two or more persons are appointed to a term-limited office, the length of time they can occupy or hold that office is fixed and uniform no matter their age or date of appointment/election. For instance, the Constitution limits constitutional judges to 15 years, the Prosecutor General to 12 years and the President to 10 years. There be no doubt that these are term-limit provisions. The second dimension to a term-limit provision is that the limitation in length of time must relate to holding or occupying a public office. It does not relate to time which is unconnected to the holding or occupying of that office. Both dimensions are essential elements to activate the section 328 provisions. That is to say, it is only when a provision limits the length of time for which a person can hold or occupy a public office that it qualifies as a term-limit provision under the Constitution.

3. Effect of 2nd Amendment to the Constitution 

The next inquiry is whether the 2nd Amendment to the Constitution, in allowing judges the option to sit for five years beyond the retirement age of 70, amended a term-limit provision. It is only if the retirement age of 70 qualifies as a term-limit provision that its amendment cannot benefit sitting judges. It is abundantly clear that a retirement age does not limit incumbency based on the length of time holding or occupying a public office. Instead, it limits incumbency based on linear progression of time since birth. It does not provide a fixed length of time for which a person may hold public office, but only a fixed age at which they must retire. Thus, what is fixed is the age at which tenure ends, not the length of time which one may hold or occupy public office. It relates to the totality of time accumulated since birth, whether spent holding public office or not. It is the mere fact of holding public office upon attaining the retirement age, rather than the length of time holding it, which leads to extinction of tenure. As such, persons appointed to the same office will retire at a uniform age, but potentially serve for different lengths in time. The fixed age of retirement is thus distinct from the fixed term of a term-limit provision. The absence of a limitation in length of time holding or occupying public office makes it clear that retirement age is beyond the scope of the Constitution’s definition of a term-limit provision.

4. High Court Ruling and Judicial Tenure

The High Court treated both age and term limits as term-limit provisions. According to the summary judgement, the key consideration was …whether section 186 has the effect of extending the length of time that second Respondent and the other Judges of the Constitutional Court and Supreme Court may all occupy office. We come to the conclusion that this section has that effect.

With respect, the key consideration was not whether tenure had been extended, but whether it was done by altering a term limit provision. The Court then indicates that retirement age is a term limit provision, suggesting that the Court interpreted a term-limit provision to mean any general limitation in time and not the precise length of time one is permitted to hold or occupy public office as stipulated by the Constitution.

It must be noted that a term limit is not the only way that judicial tenure is limited. Thus, it cannot be used as an umbrella term which subsumes other methods of limiting tenure. According to legal governance professor Brian Opeskin, there are three models of limiting judicial tenure in the world: life limitsage limits and term limits. Life limits grant judges tenure for life, as is the case with federal judges in the USA. Age limits are the ageist conception of tenure which mark a fixed age for retirement and are found in most common law systems. Term limits are the age-neutral model which limit the time holding or occupying judicial office and were introduced by civil law jurisdictions which concentrated power in a specialized Constitutional Court, beginning in Austria. As such, tenure can be for life, for a fixed term or up to a fixed age. Conversely, it is ended by death, the extinction of a term or attainment of the retirement age. There is no theoretical basis for treating retirement age as a term limit. In fact, the Constitution treats the two separately, with attainment of the retirement age meaning a judge leaves or elects to sit further, whilst extinction of the term means a judge has to leave the court, with the option of being appointed to a lower court. This is similar to South Africa, where constitutional judges can serve beyond the retirement age of 70 if they are yet to serve for 15 years. The irresistible conclusion is that an age limit is not a term limit, but another method of limiting tenure.

This is when I often receive feedback regarding sovereignty as a shield from  comparative constitutional law. The Constitution of Zimbabwe requires courts to consider foreign law and incorporate international law in the interpretive process. The Constitution locates itself within a web of regional and international constitutional developments, cognisant that a body of constitutional jurisprudence is still taking root since the constitution’s recent enactment.  Whilst courts have all the power to disregard foreign law, they must consider it and these considerations are vital to any interpretations of the supreme law.

5. So the 2nd Amendment does not change a term-limit provision? 

It actually does – just not in respect of the age limit provisions for reasons outlined above. The 2nd Amendment, through the new section 186(1), removes the Chief Justice and Deputy Chief Justice from the ambit of constitutional judges who are appointed for one non-renewable 15-year term. All other constitutional judges remain term limited. The Chief Justice and Deputy Chief Justice will only be subject to the retirement age. This is quite clearly a change to a term limit provision. This is probably motivated by the realization that it would not be desirable to re-appoint the two most senior judges to the High Court or Supreme Court, as is the case for the other constitutional judges. The most senior judges already have a distinctive manner of appointment in Zimbabwe and in other parts of the world. The South African Constitutional Court has said this is due to their extra-judicial administrative and ceremonial duties, which include liaising with and interacting with the executive and the legislature on behalf of the judiciary.

This extended tenure of the most senior judges means it is possible for a president to appoint a young Chief Justice and Deputy Chief Justice whose tenure spans across many presidential cycles. President George W. Bush used this strategy to great effect when he appointed then 50 year-old John Roberts to be the US Chief Justice in 2005. In South Africa, the exemption of the Chief Justice from term limits was a statutory change which was subject to presidential discretion and was thus ruled unconstitutional.

6. So does this mean the 2nd Amendment needed a referendum and the High Court was correct?

As highlighted before, changes to term limit provisions are permitted as long as they do not benefit incumbents. This means the Chief Justice and Deputy Chief Justice are still term limited, but their successors will only be age limited. If the government sought to remove term limits for the current Chief Justice and Deputy Justice, they would have needed to amend section 328(7), which process requires a referendum. Currently, the Chief Justice and Deputy Chief Justice were meant to benefit from changes to their age limits, not their term limits. That does not require a change to section 328 (7) and thus dispenses of the need for a referendum. For completeness, the provisions in the new 186(4) for incumbent judges to benefit from the changes in the amendment can only be in respect of the changes to age limits. The term limit changes cannot apply to them without the necessary amendments to 328(7). This probably explains the government’s insistence that the amendments relate to age limits rather than term limits.

7. But isn’t the mischief that Constitution sought to remedy that officers extend their tenure through constitutional amendment? 

The Constitution limits its prohibition to officers who extend their tenure by amending a term-limit provision. The framers of the Constitution could have omitted reference to a term-limit provision, thus prohibiting all manner of extension of tenure by constitutional amendment. Since they did not do so, the clear wording of the Constitution means it is only when a term-limit provision is changed that sitting officers cannot benefit.

8. Is this a Malaba amendment? 

This is the most common gravamen against the 2nd Amendment, the charge that the government drafted an amendment in anticipation of Chief Justice Malaba’s retirement to extend his tenure and secure their interests. It is the result of successful political advocacy which associated the person of the Chief Justice with the outcome of the 2018 presidential election petition. Notwithstanding that the petition was dismissed unanimously, bitterness with the electoral outcome has led to hostility against Chief Justice who has been projected as the entire object of the 2nd Amendment. This is also linked to the high visibility resulting from granting televised broadcast of the presidential petition.

The reality is that the 2nd Amendment would have passed over a year ago were it not for the national lockdown occasioned by the Covid-19 pandemic. The timing of the amendment’s passage is thus a consequence of circumstance. Moreover, the amendment extends the option to work beyond the retirement age of 70 to all judges of the Supreme Court and Constitutional Court; with high court judges presumably expected to work towards promotion to the superior courts where they can exercise the same option. As highlighted before, judges are generally promoted based on seniority, with the head of the judiciary likely to be its oldest member. It stands to reason that the Chief Justice would be the first to benefit, but that does not mean he is the only one to do so. His extension of tenure is neither unique nor exclusive.

It must also be noted that jurisdictions have often grappled with the problem of retaining judges beyond mandatory retirement ages. Prominent examples are provided by Professor Opeskin from Australia and South Africa. The South African retirement age is 70, but their Constitution was amended to allow parliament to extend the tenure of constitutional judges. Thus, constitutional judges in South African can serve up to the age of 75 if they have not served for 15 years. In South Africa, the law actually singled out the Chief Justice as eligible for extension of tenure beyond the term limit of 15 years up to the age of 75. This was the provision used by President Zuma to extend the tenure of Chief Justice S.Sandile Ngcobo before the Constitutional Court struck down the provision. This is distinct from the Zimbabwean scenario, where the removal of a term limit cannot apply to Chief Justice Malaba who can only opt to work until the 75 year limit like all other superior court judges.

9. Is the Appeal in the wrong forum? 

This will only be clear after having sight of the full judgement and the order concerned. Orders of constitutional invalidity must be confirmed by the Constitutional Court before they have any force or effect. Orders of validity, it has been ruled, must also be appealed to the Constitutional Court. Lawyers who argued this case insist that there was no order of constitutional invalidity, but rather a declaration of the applicable law. In other words, they insist that there is no need for Constitutional Court confirmation. If the lawyers who argued this matter are correct and there was no order of constitutional invalidity or validity, then there is likely no basis for arguing that the appeal is in the wrong forum since it is only in those specified matters that the appeal must be made directly to the Constitutional Court.

10. What is the fate of the Deputy Chief Justice and the other judges of superior courts 

This is yet another matter which will be elucidated by the full judgement. By the summary judgment rendered, the Deputy Chief Justice, if she attains the age of 70 in that position, would likely face the same fate as the Chief Justice and cease to hold office on that date without the option for electing to sit for five more years.  Regarding the other judges, there has been reference to a distinction between acting judges who can benefit from the amendment and sitting judges who cannot. This is not all that clear, given that section 328(7) not only precludes officers who have served in an office from benefitting from an amendment, but also those who held an equivalent office. By that logic, it could mean the vast majority of superior court judges, even those who were in an acting capacity, would be precluded from extended tenure unless the High Court judgement is overturned on appeal.

Source: David Hofisi Blog

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