2021 marked a significant shift in Zimbabwe’s constitutional order towards authoritarian consolidation and democratic erosion. The Constitution of Zimbabwe was amended, subtly strengthening the hand of the executive in appointment of personnel to key institutions such as the judiciary and the office of the prosecutor general. This piece relates particularly to the constitutional provisions regarding the judiciary, which have been the subject of political interference through two major constitutional amendments.
The amendments in question changed aspects relating to the process of appointment and tenure of judges in the two Zimbabwean apex courts, namely, the Supreme Court of Appeals and the Constitutional Court. The changes to the supreme law of the country have been roundly criticised as an attack on the rule of law, and an insidious attempt to undermine democracy through the erosion of independent institutions. This is especially the case in the courts, where perceptions abound that the judiciary is captured. Signs have included the disparate treatment of government officials and loyalists accused of crimes, and opposition actors, human rights activists, and journalists prosecuted for alleged crimes, with the former group being granted bail expeditiously, and the latter group held for prolonged periods in pre-trial detention. These perceptions are inevitably worsened by the government of President Emmerson Mnangagwa’s attempts to backtrack on several progressive reforms introduced by the 2013 Constitution of Zimbabwe to insulate independent institutions from political interference. A parliamentary majority has been deployed to amend the constitution to this end.
The exercise of the new powers under the amended constitution by the president is already well under way. The president has appointed a deputy chief justice, and possibly promoted five Constitutional Court judges under the new powers. He has further promoted six judges from the High Court to the Supreme Court of Appeals, and extended the term of office of Chief Justice Luke Malaba by five years. The opacity of these appointments, promotions and extensions, coupled with the perception of the weaponization of the judiciary against political opponents has led to the view that there is a concerted effort to capture the judiciary by the executive.
APPOINTMENT OF JUDGES UNDER THE 2013 CONSTITUTION
The 2013 Constitution represented a significant shift from the near absolute discretion of the president in judicial appointments, giving a more prominent role to the Judicial Services Commission (JSC) and the public in a transparent and devolved process of selecting judges. It introduced a public nominations process and a public interview process, while reducing the sweeping presidential powers of appointment. Upon completion of the interviews, the JSC would submit a shortlist of candidates from which the president had to appoint judges. The process uniformly applied to the High Court, which is the court of first instance among the superior courts, the Supreme Court, which is the apex appeals court, and to the Constitutional Court, which is the apex court in constitutional matters. It also applied to all appointments or promotions to the positions of judge-president of the High Court, the deputy chief justice, and the chief justice.
The process was one which increased democratic participation, as the public, including civic society actors, could take part by observing the interviews as they were conducted, and by accessing commentary by civic society actors on various broadcast platforms. The process also increased accountability of judicial officers to the public by involving the public in the nomination process and opening their selection and promotion to the court of public opinion. The overall consequence of this process was that selections to the bench became more transparent. This transparency has been reversed by recent amendments to the constitution.
THE CONSTITUTIONAL AMENDMENT PROCESS
The Constitution of Zimbabwe reposes the amendment power in the Parliament of Zimbabwe. The parliament is made up of the National Assembly, and the Senate. The constitution further prescribes a public consultation process before a Bill amending the constitution can be adopted by the two Houses of Parliament. For a Bill amending the constitution to pass validly, it should attain the votes of at least two thirds of the Members of the National Assembly, and at least two thirds of the Senators in separate sittings. The president may then assent to the Bill, before it is gazetted and subsumed into the law of the land.
ZANU-PF, which is the ruling party in Zimbabwe, currently enjoys control of a majority in the National Assembly, and enjoyed support in the Senate of an opposition faction that controversially recalled parliamentarians from the main opposition MDC-Alliance. The two constitutional amendment Bills therefore passed without genuine opposition, while meaningful public participation was muted as consultations on the most far-reaching of the two Bills took place in the context of a COVID-19 pandemic-induced lockdown.
THE CONSTITUTIONAL AMENDMENTS AND THEIR CONSEQUENCES
The first amendment to the 2013 Constitution was passed through a second Senate vote in April 2021. This second vote in the Senate supposedly remedied the fact that the initial vote in 2017 did not attain the required two thirds threshold. This had resulted in a provisional declaration of invalidity by the Constitutional Court of Zimbabwe in a judgment handed down only in 2020. However, the validity of this second vote is currently challenged, since it is contended by analysts that the Amendment Bill had lapsed in terms of the constitution. Notwithstanding this purely procedural challenge, worries had already been raised that the amendment posed a danger to the rule of law, since they put into question the independence of judicial officers.
The amendment permits the direct appointment of the country’s most senior judges, namely the judge-president of the High Court, the deputy chief justice and the chief justice by the president. It further took away the requirement of public interviews. A clear problem with the amendment is that it makes the appointment of senior judges less transparent. It further reposes more power in the president over an arm of government that is supposed to serve an oversight function on the exercise of executive power through its power of review. Owing to this amendment, senior judges may be more prone to becoming beholden to the president as appointments are made at his discretion. As the senior judges are the administrative heads of their courts, the amendment can be abused by the executive to control the judicial process indirectly. This has the consequence of compromising an important check on the exercise of executive power. Relying on this amendment, Zimbabwean President Emmerson Mnagagwa also appointed a new deputy chief justice, and the judge-president of the High Court. The validity of the amendment empowering the appointment is still under challenge for constitutionality.
This second amendment introduced, among a raft of changes, the possibility for incumbent judges in the Supreme Court and Constitutional Court to elect to extend their terms by five years after attaining the compulsory retirement age of seventy years. This effectively raises the retirement age of judges in these two courts to seventy-five years. The Minister of Justice, Legal and Parliamentary Affairs, on whose initiative the amendment was introduced, defended the amendment suggesting that its purpose was to tap into judicial experience for longer. Previously, all judges could not serve beyond the age of seventy years. Put differently, the term of office of a judge was definitive.
While this new possibility was couched as an “election” exercised by the incumbent judge, in reality the amendment gives the president the power to accept or refuse the extension of tenure of a judge wishing to exercise this choice. This is done by requiring the incumbent to submit to a medical test, whose certification is subject to acceptance by the president. The language of the amendment is such that the president has a discretion to accept or refuse the election by a judge to continue in office beyond seventy years of age. Effectively, this introduces insecurity of tenure of judges prior to attaining the age of seventy years, as it creates a hope of extension of tenure that is subject to the approval of the president. It creates a fear that the president may use his discretion to curtail the tenure of office of the judge beyond seventy years for reasons other than the physical or mental fitness of the judge, as the president is not required to give reasons for refusing to accept the medical certificate. It creates room for political considerations in whether a judge is permitted to continue in office until seventy-five years of age. This has a palpably negative effect on the impartiality of judges, as a judge seeking to serve beyond the age of seventy years may seek to please the president who has the power to grant or refuse the extension. On the other hand, once tenure is extended beyond seventy years, a judge may also be inclined to repay a gift extended by the president through the exercise of this discretion.
The second amendment also empowers the president to promote sitting judges of the superior courts to the next higher court without the need for a public interview by an independent JSC that was hitherto constitutionally mandated to recommend judges for appointment to all the courts. This raises objections similar to those against the first amendment discussed earlier, in that it reduces the transparency in judicial appointments, and creates executive prerogative in the promotion or stagnation of the careers of judges. It is thus potentially a potent tool in the hands of the executive to reward or punish judges in accordance with how they rule in matters concerning the executive. In the case of the most recent Constitutional Court appointments, it is unclear if this new power of promotion was relied upon since interviews were conducted before the amendment passed. However, all five appointees were promoted from the Supreme Court bench. Clearly the new promotion power was exercised by the president to fill the vacancies in the Supreme Court created by the promotion of judges to the Constitutional Court.
COURT CHALLENGES AGAINST THE AMENDMENTS
Civic society has not been inactive with respect to the underhand amendment of the constitution. Challenges in the courts have relied on a mixture of procedural and substantive arguments. Constitutional Amendment No.1 Act was provisionally invalidated because it did not meet the two-thirds majority requirement in the Senate. It was subsequently voted on again and passed with the required majority. However, because the Bill straddled two sessions of parliament, further challenges to the validity of the Amendment Act now rest on the contention that the Bill in fact lapsed in terms of the constitution’s article 147, and could not be a valid Act.
Meanwhile, the challenge to Constitutional Amendment No.2 Act has largely been focussed on the question whether the retirement age of judges is a term limit, and therefore subject to a prohibition of incumbents at the time of an amendment benefiting from that amendment. This is in terms of article 328(7) of the constitution, which remains unamended. Apart from the perception that the president has obtained a means to unduly influence judges by placing their continued tenure under his control, the manner in which the amendment passed very close to the seventieth birthday of the incumbent Chief Justice, Mr. Luke Malaba, created a further crisis of perception that it was an amendment specially designed to protect his incumbency. The Minister of Justice, Legal and Parliamentary Affairs launched a vitriolic attack against judges of the High Court for finding that the term of office of Chief Justice Malaba had expired and that he could not benefit from the amendment of the Constitution to extend his tenure of office. The minister’s argument was to the effect that the ruling was somehow a ruling against the government. This raises concerns that the executive has a vested interest in guaranteeing the continued tenure of certain judges for whatever undisclosed reason and this erodes public trust in the judiciary.
The ruling by the High Court has since been overruled by the Constitutional Court, which ruled on an application that the tenure of the Chief Justice had been validly extended. He has since continued to serve as Chief Justice.
DEMOCRATIC EROSION
The imprint of the influence of the executive in the appointment of judges in Zimbabwe is perilous to the independence of the judiciary. It is a manifestation of democratic erosion that is one of the early warning signs for an increasingly authoritarian regime. The consolidation of control by the executive over all the organs of the state, including the ones that are constitutionally independent and particularly the judiciary, is a worrying development for human rights actors and figures in opposition in Zimbabwe. It impedes on fair trial rights and promotes impunity for violations of human rights due to the perception of bias and resultant mistrust that complainants would not benefit from equal protection of the law. This would especially be the case where the state is the alleged perpetrator of such violations. In view of the trend of the weaponization of the law that has seen the persecution of journalists, human rights defenders, civic society actors, and opposition political actors in Zimbabwe through the criminal justice system, recourse to an independent judiciary is of paramount importance for the vindication of fundamental rights.
Tonderai Theodore Matanda is a candidate legal practitioner from Zimbabwe. He has a keen interest in issues straddling international law, human rights and politics. He is an active supporter of Amnesty International.