This is a comment on Justice Hungwe’s judgment in the Zibani matter.
Summary of facts
The facts of the matter are simple: Romeo Zibani sought an interdict to stop the Judicial Services Commission (JSC) from conducting public interviews of candidates for the post of Chief Justice. The JSC had made a call for the nomination of candidates in October 2016, carrying out its constitutional mandate in terms of section 180 of the Constitution. Four candidates were nominated and were due to be interviewed on 12 December 2016. Zibani launched his application 5 days before the scheduled interviews. The matter was brought before Justice Hungwe who delivered an order on 11 December 2016, stopping the interviews. He did not give his reasons on the day, promising to do so the following day. Meanwhile, the JSC immediately noted an appeal at the Supreme Court suspending the operation of Justice Hungwe’s judgment. It decided to proceed with the interviews. Justice Hungwe’s reasons became available on 14 December 2016. This comment analyses the reasons given by the judge.
As a matter of law, the legal questions were clear-cut:
First, can a court interdict a constitutional body, which is acting lawfully to fulfil its constitutional mandate, on the basis that the Executive has expressed an intention to amend the constitution? Allied to this is whether an Executive’s intention or policy proposition overrides existing constitutional provision?
Second, can a provision of a Constitution be declared unconstitutional and consequently, does a court have the power to order Parliament or the Executive to amend the constitution?
As a general comment, and with respect, the most conspicuous feature of the judgment lies in its lack of coherent legal reasoning. The judge does not answer the key legal questions. Instead, he rumbles on at length over matters that do nothing to address the core questions.
Can a court interdict a constitutional body from lawfully carrying out its constitutional mandate?
In other words, can a mandatory constitutional procedure be stopped merely on the basis that a citizen is unhappy with it and the Executive has expressed an intention to amend the Constitution? The answer to this is so elementary that even a first year student of law can answer it without reference to any text. It is a well-known principle of law that the Constitution is the supreme law of the country. The intention of the Executive, expressed in an unsigned internal memorandum or draft bill cannot by any means override it. No judge applying the basic principle of constitutional supremacy, expressly stated in section 2 of the Constitution, could have found otherwise.
The JSC’s duty to conduct the process of interviewing candidates under section 180 is mandatory. The JSC does not have a choice. The JSC is required by the Constitution in section 191 to conduct its business in a fair, just and transparent manner. The judgment does not find that the JSC has failed to do so. By law, to get an interim interdict, one has to show that he has a prima facie right (which is a right on the face of it). How does Zibani have a right on the face of it to stop a lawful constitutional process? Unless and until the section 180 is amended, the JSC must uphold the Constitution and carry out the process. Anything else would be taking extreme liberties with the Constitution. The judge did not find that the JSC process was unlawful. Courts have the duty to ensure that the doctrine of legality is upheld, and should not grant recourse that has the effect of preventing public bodies from upholding the law.
Surprisingly, Justice Hungwe somehow managed to ignore the elementary principle of constitutional supremacy and instead, chastised the JSC for not paying heed to the intention of the Executive. Taken to its logical conclusion, the judge’s flawed reasoning is that if a public body is faced with a situation where he must decide between upholding a constitutional provision and a government policy, it must follow the policy and defy the Constitution. This is absurd, given the trite rule that the Constitution is supreme to any other law, practice, custom or policy. Justice Hungwe thinks upholding the Constitution in this way, ahead of an unsigned internal memo and a draft bill equates to “slavish adherence” to the Constitution. Bizarrely, he thinks sticking to the Constitution will somehow be a threat to the independence of the judiciary. How upholding the Constitution, which is a constitutional duty, poses a threat to judicial independence is a wonder that defies rational explanation. In this case, Justice Hungwe gave precedence to an unsigned internal memo and a draft bill, ahead of the Constitution. This is a judge who took an oath of office, vowing to uphold the Constitution, which he now needlessly downgrades in favour of a meaningless unsigned government memo and a draft bill.
The implication of Justice Hungwe’s reasoning is that if any citizen does not like a constitutional clause which requires a constitutional body to do something, they can go to court to stop the constitutional body from carrying out its mandate and the court can order the Executive or Parliament to amend the Constitution. Meanwhile, the Constitution is put in abeyance, pending the fulfilment of the litigant’s desires. It negates the basic principle that the Constitution, however objectionable it might be, is supreme. It also breeds uncertainty and confusion. If Justice Hungwe’s reasoning were to be followed, it would allow constitutional bodies to disobey the Constitution arguing that they are lobbying government to pass a law to change it. For example, ZEC might refuse to register voters, arguing that they are waiting for government to process an amendment to the Constitution. Such reasoning, which Justice Hungwe’s judgment encourages, would be a recipe for disaster. You could have citizens suing to interdict constitutional bodies for all manner of reasons, the ultimate end of which is to stop them from carrying out their constitutional mandate. A constitutional democracy does not work like that. It prioritises the constitution above all else.
Can a court order the Executive or Parliament to amend the Constitution?
The implication of Justice Hungwe’s judgment is that this is possible. However, it is a well-known principle that courts do not make orders that cannot be fulfilled. This type of judgment is known as a brutum fulmen. A constitutional amendment is a special type of amendment, with its own unique requirements. A court of law has no control over this process. Justice Hungwe assumes that the amendment of section 180 is a fait accompli. He forgets that it is not for the Executive to amend the Constitution. It is for Parliament to do that. Zibani might as well have sued Parliament. The wishes of the Executive are not a decision of Parliament. According to section 116 of the Constitution legislative authority vests in Parliament and the President acting together.
In this case, it just happens that the applicant and the Executive were in agreement in their desire to have section 180 amended, suggesting it was a sponsored application. But still, Parliament would have the last say and unless the judge knew something that we did not know, there is no guarantee that Parliament would pass it. In any event, what about in other cases where the Executive does not agree with a litigant’s proposed amendment? Would Justice Hungwe still stop a constitutional process merely because a citizen has asked for a constitutional amendment? Or would he change his tune and refuse merely because the Executive is not in favour of the amendment? If the latter, is his judgment setting a precedent for upholding a citizen’s objection generally or rather, it is merely acquiescence to the Executive’s desires using the cover of a private citizen in this particular case?
Can a provision of the Constitution be declared unconstitutional?
This is essentially what Zibani was arguing in respect of section 180, namely that the procedure that it sets out was unconstitutional and ought to be amended. Justice Hungwe could only stop proceedings of the JSC if there was a chance that this question could be answered in the affirmative and it is a fundamental question of constitutional law. The judge had the benefit of the JSC argument that there was no provision for determining that one part of the Constitution is unconstitutional. However, incredibly, Justice Hungwe decided that the JSC had “missed the point”. He goes on to state what he believes to be the point, but it’s so incoherent that it is impossible to decipher the point he’s making. Instead of addressing the question and determining whether part of a Constitution can be declared unconstitutional, he gives a rumbling account of how the Constitution provides for values and principles and a host of other issues which have no relevance whatsoever to the legal question. As already stated, he gives precedence to the intentions of policy-makers ahead of the Constitution – a complete violation of section 2 of the Constitution. He says in the judgment, “… I consider that when the policy-maker indicates an intention to make provision for an hitherto unforeseen eventuality, the courts would play their role by taking notice of such intention (sic) …” Taking notice of a policy-maker’s intention and disregarding existing provisions of the Constitution? It’s inexplicable how the learned judge comes to the conclusion that a Minister’s intention can be superior to an existing provision of the Constitution.
Judicial independence and accountability
On the issue of judicial independence, Justice Hungwe tries to bring in the issue of judicial accountability, presumably to counter-balance this fundamental principle. His definition of judicial accountability gives the impression that he believes judges are somehow accountable to the Executive – he refers to them as the “elected representatives”. It is trite that the JSC is accountable to Parliament – the Constitution says so in clear terms. Justice Hungwe seems to be suggesting that the JSC is also accountable to politicians in the Executive, whom when they express their intention to amend the law must be obeyed ahead of the Constitution. This is at odds with the basic principles of independence of the judiciary, separation of powers and supremacy of the Constitution.
On accountability, his definition is as obscure as it is meaningless. He states as follows, “the judiciary owes it to the public to be accountable politically, decisionally and behaviourally”. Whatever the words “decisionally and behaviourally” mean, he makes no effort to define them so that they can be of any guidance to anyone. Ironically, he cites academic sources which say accountability refers to “fidelity to the law”, which is precisely what the JSC was arguing. By insisting on adhering to section 180 of the Constitution, the JSC is simply being faithful to the law and yet in the same judgment Justice Hungwe chastises them for what he calls “slavish adherence to the law”! To whom then is the JSC supposed to be accountable – the Constitution or the Executive?
I have deliberately avoided commenting on how Justice Hungwe dealt with the preliminary issues because the judgment is bad enough on the substantive issues. However, one of them warrants commentary. He dismissed the JSC’s argument that the matter was not urgent. The JSC’s argument had been well made. Zibani had brought urgency upon himself and the court should not have entertained him. His application was no more than a nuisance designed to frustrate a lawful constitutional process. Zibani knew in 2013 that this was the process as provided for in section 180. In any event, the retirement of the Chief Justice was not a surprise. A man can only reach 70 once and Zibani and government should have anticipated that he would have to be replaced under section 180. Furthermore, the call for nominations to start the process commenced in October 2016. The application and the desired amendment could have been made long before it was launched as an urgent matter. On those facts, any other applicant would have been dismissed, but Zibani was treated with unusual leniency by Justice Hungwe.
In conclusion, Justice Hungwe’s judgment reads more like a mangled political treatise on the supremacy of Executive intentions over the Constitution – the antithesis of what is expected in a constitutional democracy. Perhaps the most bizarre statement which encapsulates the weak and contradictory reasoning in the judgment is the following: “It occurs to me that where a lawful process leads to an absurd result, in the sense that colleagues select each other for entitlement to public office, as argued by applicant, it cannot be sanctioned on the ground that it is provided for in the law. Such an approach is irrational.” Here is a judge basically trashing what he knows is a lawful process. If a judge cannot sanction a constitutional process on the basis that it is provided for in the law, on what other basis would he make the determination?
It is also a misstatement of the law to say that “colleagues select each other for entitlement to public office”. The JSC does not appoint the Chief Justice. That mandate belongs to the President. The JSC is just a player in a process which involves members of the public – as nominators and as a public audience that provides scrutiny to the process. But the judgment itself is a mass of contradictions – on the one hand he gives a lecture on the values and principles of the Constitution, one of which is the supremacy of the Constitution, yet he goes on to deliver a decision which gives priority to the intentions of politicians ahead of the Constitution. It is a weak judgment and that itself is an understatement.