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David T Hofisi Correspondent
THIS post is a response to Dr Alex Magaisa’s “The trouble with our Judiciary.” In that piece, Dr Magaisa uses the decision in Gonese & Majome vs Parliament & Others CCZ 4/20, together with the failure to hold public interviews, as evidence that the very men and women with the power to defend the Constitution are conspiring to trash it. These are strong words and grave allegations.

As a student of Constitutional Courts, I have a keen interest in the public’s perception of judicial bodies as well as the distance between judicial outcomes and how they are shaped and presented for public consumption. Thus, the allegations warrant further attention.

1. Unconstitutional constitutional amendments

In the Gonese case, the Constitutional Court ruled that passage of Constitution of Zimbabwe Amendment (No.1) Bill in the Senate was constitutionally invalid as the threshold of two-thirds was not reached.

For DrMagaisa, this marks an important precedent that a constitutional amendment can be unconstitutional on procedural grounds. However, this has never been in doubt. There are two types of invalid constitutional amendments. The first is based on process and the second on substance.

Process invalidations are procedural. They ask whether the power to amend was exercised in accordance with the provisions of law.

On the other hand, content invalidations are substantive. They inquire whether the actual content of the amendment is consistent with the constitution. It is akin to two students who inform the teacher that their test results are wrong. The student who says the addition of awarded points is inaccurate makes a procedural claim whilst the one who argues that their responses deserve a higher grade makes a substantive claim.

Every country which sets procedures for constitutional amendment allows invalidation of unprocedural amendments. It is the entire object of setting out the procedure.

However, some countries go further and allow their courts to rule that a constitutional amendment is invalid even if it is procedurally valid. This is the unconstitutional constitutional amendment. It limits the capacity of parliament to amend the constitution if that amendment is against a constitutional norm.

This empowers courts to evaluate constitutional conformity as though the amendment were any other law. This power has been exercised in a few countries including India, Turkey and Bangladesh.

In most countries, the legislature retains original constitution-making powers and can amend any part of the constitution subject to the procedural requirements. These amendments are never rendered unconstitutional since they form part of the constitution upon enactment.

In Gonese, the Constitutional Court did not suggest that there is scope for an unconstitutional constitutional amendment. It couched amendability as part of the constitution’s perpetual mutability and parliament’s flexibility to adapt to the needs of society.

The counterbalance to mutability was stated as rigidity through a special amendment process. The court did not identify substantive limits on the amending power. Even though it highlighted that amending is not the same as replacing, this also points to the procedure for the two rather than a suggestion that Parliament lacks the power to do either.

Restating that laws passed unprocedurally are invalid is hardly new or innovative. The Court would have to cite provisions which cannot be amended outside of constitutional replacement to suggest acquiescence with the idea of unconstitutional constitutional amendments.

2. Invalidation of Bill instead of an Act

Dr Magaisa is befuddled by the fact that the Court ruled against the Bill when applicants were challenging the validity of an Act of Parliament, because the President had already signed the Bill into law. He suggests that a request for a cow was met with the granting of a goat, enabling the court to send the Bill to the Senate. For this reason they, according to him, invent a new application for the applicants, treating their challenge as one against a Bill rather than an Act.

This allegation strikes at the heart of judicial integrity, with the potential to intensify feelings of hostility against a bench portrayed as deceitful and self-indulgent.

The allegation is inaccurate. The Gonese application challenged the passage of the Bill, and on that basis subsequently challenged the Act. Both were before the court.

Full article on www.theherald.co.zw

 

This is reflected in Dr Magaisa’s own writing: They argued that the special parliamentary procedure used to pass the Constitutional Bill was flawed and that Parliament had failed in its duty to uphold the Constitution. The relief sought by the applicants appears in the judgement as follows:

The relief sought is by way of a declaratory order in the terms that:

1. Parliament failed to fulfil the constitutional obligation provided for in s 328(5) of the Constitution of Zimbabwe, which requires a Constitutional Bill to be passed by two-thirds of the membership of each House sitting separately, when it passed Constitutional Amendment Bill (No. 1) of 2017 on 25 July 2017 and 01 August 2017 in the National Assembly and the Senate respectively.
2. Accordingly, the proceedings in Parliament pertaining to Constitutional Amendment Bill (No. 1) of 2017 on July 25 2017 and August 01 2017 be and is hereby set aside.
3. The first respondent pays costs of suit.

The court’s version of the applicants’ draft order court is corroborated by multiple court reports. It also approximates to the case of Gonese and Majome vs President of Zimbabwe and Others CCZ10/18 in which the same applicants argued against the presentation and passage of the bill amending the Local Government Act.

Dr Magaisa makes several errors, the first of which is the claim that this application was filed after the Bill was signed into law. This application was filed on September  6, 2017 challenging the Bill. On the very next day, the Amendment Act was gazetted in General Notice 491A/17. The applicants then filed an additional application to challenge the Act, and requested the court to consolidate the two records:

To the extent that the President has now signed the Bill, it is now necessary to file this application which is directly connected and interlinked with Case Number CCZ 57/2017(earlier application). Naturally this matter and Case Number CCZ 57/2017 have to be consolidated together at the time of hearing . . . Once a finding is made that Parliament breached its constitutional obligations as contended in Case Number CCZ 57/2017, it is quite clear that the President has nothing to assent to [sic].

This not only appears from press reports, but the judgment itself:

The application was filed on September 06, 2017. Before it could be heard, the President signed Constitutional Bill (No. 1) 2017 into law. The applicants filed another application under CCZ 58/17. They sought an order setting aside the Constitutional Amendment Act on the basis that Parliament had failed to fulfil a constitutional obligation in the passing of the Constitutional Bill.

It is abundantly clear that there was no invention of an application by the Court in order to rule against a Bill instead of an Act. The applicants challenged both, arguing that a finding against the Bill would lead to a subsequent order against the Act.

They did not request a cow only to be given a goat — they requested a goat, on receipt of which they argued entitlement to a cow. What Dr. Magaisa calls a new application was an additional application. The court heard both and granted the first application whilst giving the Senate a chance to correct their error, failing which the relief in the second application becomes effective.

In the circumstances, we can lay to rest the questions over judges failing to distinguish between a Bill and an Act whilst focusing on the casting of aspersions over facts which are ascertainable from a reading of the judgment.

There is increased frequency of claiming judicial manipulation of court records. In the High Court case of Mashavira, the judge was accused of using the wrong constitution. When actually pressed on the issue, the opposition relented and conceded that the correct constitution had been used. After the Supreme Court decision in Mashavira, judges were accused of changing the names of parties by switching the MDC-T to MDC. This belies the fact that the High Court papers resembled those in the Supreme Court. It suggests that court decisions are being weaponised to advance peculiar party interests at the expense of the public’s perception of the courts.

3. Justice Gwaunza’s non-recusal

The other serious charge levelled against the judiciary is aimed at Deputy Chief Justice, Hon Elizabeth Gwaunza. Since she was appointed in terms of the impugned amendment, Dr Magaisa states that she must have recused herself from the case. Her participation meant there was self-interest in the Court’s decision to save the invalid amendment. This, he argues, explains why the Court fashioned relief allowing the Senate to save the amendment.

In summary, Dr Magaisa charges the highest court with inventing an application so they could save one of their own from a constitutionally invalid appointment. In the same vein, he states that the second most powerful judge in Zimbabwe presided over a case oblivious or indifferent to a conflict of interest.

Yet again, Dr Magaisa is dead wrong on the facts. These two applications were heard on January 31, 2018. This appears from the judgment itself and press reports. Justice Gwaunza was appointed Deputy Chief Justice on March 30, 2018, a full two months after the hearing this case. She could not have recused herself for an appointment yet to be made.

The self-interest that Dr Magaisa cites was non-existent. It is evident from the judgement that Justice Gwaunza heard the case and gave her opinion prior to her appointment as the suffix to her name is JCC (Judge of the Constitutional Court) and not DCJ (Deputy Chief Justice). Yet again, the facts alleged and aspersions cast could have been dispelled from a reading of the judgement. There is no evidence that any application was invented or recusal needed in the circumstances.

4. Parliament continuation

Did the court take Parliament for granted in giving it an opportunity to remedy this defect? The Court suspended its order of invalidity so the Senate has a chance to rectify its constitutional breach. Suspended orders of invalidity are used by constitutional courts as a soft remedy. It is a dialogic device enabling the judiciary to engage the legislature in a constitutional conversation.

Some scholars argue that courts are more activist when they have this power since the state can remedy constitutional infractions before the order of invalidity is effective. This power is in section 175 (6)(b) of the Constitution which empowers the Court to;

make any order that is just and equitable, including . . . an order suspending conditionally or unconditionally the declaration of invalidity for any period to allow the competent authority to correct the defect.

This is the power which the Court cited. Dr Magaisa objects on two grounds. First, he argues that the Bill lapsed since the relevant session of Parliament ended in July 2018. Secondly, this is a different Parliament. In his view, the Act should have been deemed unconstitutional, thereby concluding the entire matter.

However, the Bill’s passage was challenged in both houses and only succeeded in respect of the upper house. Whilst it goes without saying that all Bills lapse ahead of a new parliamentary session, the relief granted in this case is by no means the norm. It is an exceptional remedy meant to address an exceptional situation.

Consider the fact that this Bill did not lapse as a matter of fact. It “passed” the Senate and was signed into law before Parliament was dissolved. It was only rendered ‘pending’ when the Court ruled against the procedure in the Senate. This does not fit neatly into lapsed Bills in the contemplation of the Constitution. Since the previous Parliament cannot be re-constituted, this leaves the option of sending the Bill to the current upper house.

Further, the Court affirmed that Parliament is a legal persona capable of suing and being sued. It acquires rights and obligations independent of its members. Whilst the Senate is indeed composed differently, it remains the properly constituted upper house of Parliament. This does not amount to taking the Senate for granted as it can always refuse to pass the Bill.

Sending the Bill to a differently composed Senate is not outrageous, more so in exceptional circumstances to correct a constitutional defect. As an analogy, the US Constitution has not time limit on the amendment process for similar reasons. The last amendment to the Constitution of the US acquired sufficient state ratifications in 1992 following the law’s passage in 1789. These states were obviously constituted differently from the time the law was passed but still exercised the constitutional power of ratification.

This is not an example to normalise this practice, but to show that institutions have the capacity to fulfil obligations in spite of shifting membership. One may disagree with this approach, but that is not legitimate basis to claim that the Court has no such power when it is clearly provided in section 175(6)(b).

5. Zibani inconsistency

Finally, Dr Magaisa highlights the failure to conduct interviews for judicial appointments as contrary to the Romeo Zibani decision. In that case, the Supreme Court underscored the primacy of compliance with the Constitution no matter the stated intentions of the executive. The Constitutional Court was formally separated from the Supreme Court on May 22, 2020. This created five vacancies on the Constitutional Court.

Dr Magaisa argues that the Judicial Service Commission (JSC) ought to have advertised the openings and conducted public interviews in accordance with section 180. I was in agreement with this claim, only taking umbrage at the suggestion that this could only be driven by inappropriate executive influence. However, having reached out to the JSC for a comment, I am no longer inclined to agree with Dr Magaisa.

Mr Walter Chikwana, the Acting Secretary of the JSC, pointed to the wording of the section 180:

“Whenever it is necessary to appoint a judge . . . the Judicial Service Commission mus . . .”

The obligation on the JSC is activated by the necessity to appoint a judge. It was not necessary to appoint a judge prior to May 22, 2020. At that point, the Constitution provided  that Supreme Court judges presided over the Constitutional Court. The necessity to appoint was created by the court separation. In other words, the requirement for public interviews was activated on May 22 2020, and the Acting Secretary confirmed that the declaration of vacancies has already been communicated to the JSC, triggering processes which will culminate in public interviews.

This makes it abundantly clear that the men and women entrusted with protecting the Constitution are not conspiring to trash it, but are faithfully complying with its provisions.

Dr Magaisa then speculates the rationale for his perceived non-compliance.

“It seems Chief Justice Malaba and the Judicial Services Commission have succumbed to the political agenda of amending the Constitution . . . ”

There is no real evidence provided for this claim. Even though the current scenario is presented as similar to that in Zibani, it is actually different. In Zibani, a Cabinet minister argued that an unsigned memorandum to Cabinet indicating an intention to amend the Constitution was sufficient basis to secure an interdict against constitutional compliance. It was also in the context of a divided Government in the throes of factionalism driven by Robert Mugabe’s advanced age. For these reasons, the Supreme Court in Zibani stated that the process of tinkering with the Constitution was “fraught with uncertainty”.

In the current matter, the executive has not sought or been part of court process to interdict the JSC. The discussion is not based on an internal memorandum. An amendment Bill was actually gazetted, presented in Parliament, and the JSC presented its views. Those views indicate that the JSC supports reforms to judicial tenure, preferring five-year extensions for all judges rather than annual extension for judges of the two highest courts.

As Dr Magaisa acknowledges, passage of the Bill was conceivable were it not for the supervening impossibility of the Covid-19 crisis. This is not a judiciary succumbing to a political agenda. It is common to order institutional behaviour in accordance with looming legal or political changes. For instance, the Constitution suspends by-elections when a vacancy occurs within nine months of a general election.

In the US, Republican Senate Leader Mitch McConnell refused to confirm President Obama’s Supreme Court pick, Merrick Garland, because the US was in an election year. The Zibani requirements for constitutional compliance remain relevant and have been respected, since the JSC has initiated the process for interviews, only encumbered by the delays occasioned by the Covid-19 pandemic.

6. Conclusion

We are living in the post-truth era in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief. A sense of injustice from the Presidential Election Petition, fomented by the Mashavira judgment, has popularised attacks on the bench including through selective reading of the Malawi Election Petition.

Partisanship fuels dramatic yet dubious narratives, which in turn entrench political divisions and intensify frustration with national institutions. Allegations against the judiciary can be peculiarly injurious since it is the branch of government which is most constrained from delivering contemporaneous feedback and rebuttals.

Thus, it is vitally important that we rigorously vet factual assertions in a sincere quest to ascertain the truth. This not only avoids needless undermining of judicial institutions, but assists in keeping personal allegiance in check so that expediency does not trump integrity and the politically fashionable does not trump the factually verifiable.