What to expect from a Malaba reign

KENT - Although Chief Justice (CJ) Luke Malaba will only have four years in office, he could still leave a remarkable legacy as head of the judicial arm of the State.

He has nothing to lose. In fact, with only four years, he has a great incentive to do more and better as he won’t have the opportunity to correct any mistakes.

In any event, this is the twilight zone of a long judicial career that began at the very bottom, when Malaba was a junior magistrate in the early 1980s.

He has a very short window in which to make his mark. Zimbabwe has a relatively new Constitution which still needs bold implementation.

The seasoned jurist could be the CJ who breathes more life into a new Constitution which the executive arm of government and legislature have been reluctant and slow to implement. He could lay the foundation for a progressive human rights jurisprudence.

The Constitution needed a new CJ with new and fresh ideas and this is his opportunity to chart a new course and make a lasting impact. His record so far has been mixed. He has issued some progressive judgments, but some of the judgments have exposed him to criticism.

One of his well-thought out judgments came when he was in the minority. In 2013, the newly-established Constitutional Court was seized with a case in which a citizen, Jealousy Mawarire sued President Robert Mugabe, compelling him to set the date for the general election.

He argued that the failure by the president to set the election date at a time when the term of Parliament was coming to an end was likely to violate his fundamental rights.

The majority led by CJ Chidyausiku ruled in favour of Mawarire’s application an outcome that resulted in the setting of election dates on July 31, 2013.

Only two judges, Deputy CJ Malaba and Justice Patel dissented and their judgments were actually the soundest, and most reasonable. Of the three written judgments, Malaba’s was the most well-reasoned and well-written.

It was a special case because of its political sensitivities and the fact that both Patel and Malaba were so bold was a remarkable show of strength of character and fairness.

Although the case had been brought by a private citizen, it had the signs of sponsored litigation in that it advanced the interests of both Zanu PF and Mugabe, even though the latter was the one who was being sued.

Zanu PF wanted an early election, which the MDC and other opposition parties were resisting pointing out that there should be electoral reforms first. It was not a coincidence that the Mawarire  case favoured Zanu PF’s interests.

The judges would have known this and for Malaba and Patel to rule against the application as they did was courageous. It was this case which could have proven to be Malaba’s Achilles Heel in his bid to become the CJ. It probably explains why it took so long before he was eventually appointed.

Another matter which demonstrates his strength of character and independence is the case of Marimo and another vs minister of Justice, Legal and Parliamentary Affairs and others (2006) ZWSC 60, a case that involved elections.

The important issue in that case was the constitutionality of the chief justice’s power to appoint judges of the Electoral Court. Section 162 of the Electoral Act conferred power to the CJ to appoint judges of the Electoral Court.

Following that provision after the 2005 elections, Chidyausiku handpicked judges to sit in the Electoral Court. This was challenged by the losing MDC candidates on the grounds that the Electoral Court was a special court and the judges had to be appointed in accordance with the normal provisions for appointing judges.

They argued that section 162 of the Electoral Court was unconstitutional. Realising that he had erred, Chidyausiku sought to revoke his initial appointments but he immediately re-appointed them.

At that time, Malaba ruled that the conduct by his former boss was improper and unconstitutional. Malaba ruled that section 162 of the Electoral Act was inconsistent with the Constitution and therefore invalid. He held that Chidyausiku’s appointment of judges was invalid.

The improper constitution of the Electoral Court meant that the rights of the losing MDC candidates to protection of the law had been violated.

“It must follow, that as the judges were not validly appointed, they had no authority to exercise the judicial power of the Electoral Court at the time they purported to hear and determine the election petitions. In other words, the court in which they sat was not properly constituted and was not a court ‘established by law’.

There was a violation of the right guaranteed to the applicants under s 18(9) of the Constitution.” It was a case in which Malaba had to rule on the legality of his boss’ conduct and he did not hide.

However, the new judiciary head has also had some low moments. One notable one was his denial of the Diaspora vote in 2005. In the case of Madzingo and others vs minister of Justice Legal and Parliamentary Affairs and others (2005) ZWSC 100, the applicants who were based in the Diaspora brought action demanding recognition of their right to vote.

The Supreme Court had to decide whether or not Zimbabweans in the Diaspora had the right to vote from their foreign stations. In a judgment for the majority, Malaba held that the law did not permit the Diaspora vote.

In his view, the seasoned jurist reasoned that while Parliament had made an exception for postal votes for selected persons who were not in the country, it had not extended it to the rest of the Diaspora citizens.

“Parliament did not find it necessary in the exercise of its powers to treat the applicants as a special class of persons for the purposes of the exercise of the right to vote,” he wrote.

In a disappointing decision, Malaba refused to recognise the right to vote as a fundamental right. The applicants had argued that denial of their right to vote as citizens was a violation of the freedom of expression.

However, he reasoned that freedom of expression did not include the right to vote. He held that the applicants’ claim that the right to vote was part of freedom of expression was an attempt “to elevate the right to vote to a constitutionally-guaranteed and entrenched right”.

In his view, the right to vote was not a fundamental human right provided for in the Constitution. This reasoning was both surprising and disappointing since universal adult suffrage was one of the chief gains of independence and was recognised in the Constitution.

It was a case in which Malaba had an opportunity to give broad meaning to the freedom of expression in order to protect a universally recognised right. He chose instead to take a narrow reading and by so doing dismissed the right to vote as a non-fundamental right.

The right to vote is now explicitly recognised under section 67 of the new Constitution, with extensive provisions elsewhere reinforcing the right to register and the right to vote in elections. It would be interesting to see how the new CJ would handle a similar matter if it were brought as a test case under the new Constitution.

Nevertheless, it is Malaba’s record on the land question that would have been a prime issue of consideration in deciding his appointment.

In this regard, the Zanu PF government would have been satisfied that he poses no threat to its land revolution. One case in particular, would have been pertinent. It was Mike Campbell (Pvt) Ltd and others vs government of Zimbabwe case which involved the question of recognition of a decision of the Sadc Tribunal.

After winning their cases at the Sadc Tribunal, some white former commercial farmers had sought to enforce the orders in Zimbabwe. The Windhoek-based council had ruled that the land reform process was unlawful and a violation of the rule of law.

By so doing the Sadc Tribunal had effectively overturned the decisions of the Supreme Court of Zimbabwe, the highest court in the land. It was to the same court that the farmers now returned to register their award and the tribunal’s decision.

Writing for the majority, Malaba dismissed the farmers’ application, holding that the Sadc Tribunal had no jurisdiction over the matter and that the Supreme Court was not obliged to comply with or enforce the orders of the tribunal.

It was a vehement defence of the Supreme Court but also in the political context, of national sovereignty. In this regard, the judgment was not just a defence of the Supreme Court and sovereignty against encroachment by a transnational tribunal but it was also a defence of the land revolution.

Malaba’s judgment was, therefore, well in sync with the government’s message. From that angle, the learned judge came across as a man the government could rely on to defend the land revolution.

In January 2016, he issued an important and progressive judgment banning child marriage in Zimbabwe. In that case, two former child brides were challenging the legality of provisions of the marriage laws which they argued permitted child marriage contrary to the protections guaranteed under the new Constitution.

That the legislative provisions were unconstitutional was never in doubt, even though the State tried to put up a defence. However, Malaba’s judgment was sound, well-researched and well-written.

He had clearly applied his mind to the matter and he used a purposive interpretation technique, enhancing fundamental rights and freedoms. It was useful to note how he made use of international and foreign law to give substance to the new constitutional provisions.

Overall, his jurisprudence so far is a mixed bag. He has made some progressive judgments but he has also made some interpretations that are open to criticism.

Now that he is CJ, he has the opportunity to chart his own course and show the kind of judge that he is. In this regard, while his performance at the interviews gave good cause for optimism, it is important to remain cautious.

Mugabe and Zanu PF do not usually make the mistake of appointing persons to senior positions without a good appreciation of what they will get.

The system is very thorough in its background checks and it is fair to say they probably know a lot more about the new CJ which the rest of us don’t know. These are the things that could be used to keep him in check.

There is also another reason to be cautious. Four years ago, the MDC agreed to the appointment of justice Rita Makarau as the new chairperson of the Zimbabwe Electoral Commission (Zec) believing she was the lesser of available evils.

Now, however, the opposition is dissatisfied with her role at Zec. For the same reason, while the appointment of Malaba has given reason for some optimism, this must be heavily qualified with caution because he could turn out to be more of the same, if not worse.

The hope is that his short tenure will live up to its promise and that he will fiercely defend the Constitution and fundamental rights while carrying out important judicial reforms that will curb the scourge of corruption and inefficiency that is affecting the justice delivery system.

In conclusion, I would say the new CJ has many challenges ahead of him. He will not only provide leadership in decision-making but he will also be the chief administrative authority of the judiciary.

He must rejuvenate and re-build the image of a judiciary that has long been accused of lacking independence from the executive. To make a mark, he will have to distinguish himself from his immediate predecessor who was seen as too close to the executive and to Zanu PF.

He has an important role to play leading the arm of government that must provide checks and balances upon the executive and the legislature.

Chidyausiku was appointed the judiciary topman to defend the land revolution and he performed that role unapologetically.

It did not win him many friends outside Zanu PF but he did what he believed was necessary.

The new CJ will have a different mandate. He must restore confidence in the judiciary.

He must reassure the markets and investors that Zimbabwe is a safe destination for investments and that the courts can be trusted to defend fundamental rights, including the right to property.

He also faces a challenging task of ensuring there is harmony in the judiciary. He will be leading a divided team.

The High Court judges expressed unhappiness with his comments late last year after he publicly criticised their performance and abilities.

The Supreme Court judges who recused themselves from the litigation over the appointment process may have been compromised.

Some members of the government wanted a different candidate.

He has an unhappy judge president who absconded from the interviews for the CJ position.

Two of his fellow judges lost out to him in the contest for the top post.

Added to this judges and magistrates are unhappy with their conditions of service.

He has to deal with a legal profession that is in dire need of bold reform.

All this is an enormous load that he must carry, in addition to his important role at the Constitutional Court.

He will have to exercise Solomonic wisdom, diplomacy and tactical awareness as he navigates through the next four final years of his long judicial career.

He could make a great impact in that short tenure, but if he does not handle it well, it could end in tears.

Of the four candidates, I boldly backed his candidature, and I wish him well. I want him to succeed and I hope he will. I will be watching closely and I will praise him when he does well, but I will also be critical if he does not meet the high standards that I expect of him.

*This is an extract from Magaisa’s bigsaturdayread blog and which was slightly edited for style.

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