Romeo Zibani, the man who tried without success last year to stop public interviews to fill the post of Chief Justice is back again, this time with an application at the Constitutional Court. He is challenging the validity of a recent judgment of the Supreme Court which effectively dismissed his bid to block and nullify the interview process. Zibani and his advisers are wrong again, as this brief note explains. Although the matter is before the court, commentary on the issues raised is in the public interest, particularly in the context of on-going constitutional amendment consultations. .
To put matters into context, a brief background of the facts is useful. Last December, Zibani brought an application shortly before the Judicial Services Commission (JSC) was due to conduct public interviews to fill the post of Chief Justice which was soon to become vacant. Justice Hungwe granted the application a day before the interviews, ordering that the interviews be stopped. However, the JSC appealed to the Supreme Court and went ahead with the interviews since the noting of the appeal suspended Justice Hungwe’s order. The Supreme Court heard the appeal this month.
As most of the judges of the Supreme Court had recused themselves, the Chief Justice appointed a recently retired judge, Justice Ziyambi to ensure there was a quorum of 3 judges on the Supreme Court panel. The Chief Justice relied upon section 268(2) of the Constitution, which states as follows:
“If the services of an additional judge are required on the Supreme Court for a limited period, the Chief Justice may appoint a judge of the High Court, or a former judge to act as a judge of the Supreme Court for that period.”
Zibani is now challenging the appointment of Justice Ziyambi, arguing that as she had already reached the age of 70, the retirement age, she was not eligible for appointment to the panel. In this regard, Zibani cites section 186(2) which states as follows:
“Judges of the Supreme Court and the High Court hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire.”
On this basis, he argues that Justice Ziyambi’s appointment to sit on the Supreme Court panel for the case was unconstitutional making the Court improperly constituted and therefore contaminating the validity of its judgment.
Whether a former judge can be appointed?
The first issue is whether the Chief Justice was right to use section 168(2) to appoint Justice Ziyambi to the Supreme Court panel. The answer to this has to be in the affirmative. That provision permits him to appoint a former judge for a limited period. It is an exceptional rule designed to cover exceptional circumstances where, for example, it is necessary to have a quorum to hear a matter, as was the case in this matter. He could have appointed a High Court judge, but given the sensitivities surrounding the matter, it was prudent to bring in a retired judge, who is not only more senior but also without an apparent conflict of interest. Justice Ziyambi was the perfect candidate for the role.
Whether a judge who is over 70 years can be appointed?
The second issue is whether it was proper and constitutional to appoint Justice Ziyambi given that she had already reached her retirement age of 70? This question goes to the core of Zibani’s application. He argues that the appointment was improper on account of section 186(2) – cited above. This section sets 70 years as the mandatory retirement age. On this interpretation, the argument is that a judge who has reached the mandatory retirement age cannot be brought back to the Supreme Court under section 168(2) as Chidyausiku purported to do. The implication would be that the pool from which former judges can be appointed under section 168(2) is limited to only those judges who are under 70 years.
The above interpretation might, at first sight, appear reasonable and attractive and this is certainly what might have prompted Zibani and his advisers to launch the application. But this is because they have probably not given sufficient attention to section 186(3) of the Constitution, which makes the following provision:
“A person may be appointed as a judge of the Supreme Court or the High Court for a fixed term, but if a person is so appointed, other than in an acting capacity, he or she ceases to be a judge on reaching the age of seventy years even if the term of his or her appointment has not expired”
This provision has to be read carefully because it covers judges who are appointed to the Supreme Court or High Court for a fixed term. The length of a fixed term is not defined. It could be a day, it could be 6 months or a year or more. What the provision says is that if a person is appointed on a fixed term, he or she stops being a judge upon reaching the age of 70 years. Thus is a person is 68 years old and is appointed for a fixed term of 5 years, he will cease to be a judge when he reaches 70, notwithstanding the fact that he would still have 3 years remaining on his fixed term contract.
However, and this is most significant in this matter, this provision does not cover a judge who is appointed in an acting capacity. This is the significance of the words “other than in an acting capacity” in section 186(3) above. In other words, a person appointed in an acting capacity is not affected by the retirement age provision. The words make an exception for judges appointed for a fixed term in an acting capacity. If they are in an acting capacity, they can serve as judges for the remainder of their term beyond 70.
It might be argued that this construction of the Constitution presents a serious mischief, as it would permit judges who have reached retirement age to continue serving beyond the maximum limit set by section 186(2) as long as they are appointed in an acting capacity. That this facility could be abused is not beyond imagination. The current regime has done worse and abused even the most well-intentioned provisions to suit its own ends.
However, this would be to over-stretch a facility that is designed for use only in exceptional circumstances. Ideally, it is a facility that is meant to benefit the justice system, not to meet the personal interests of judges who should otherwise retire upon reaching retirement age. It is a facility that permits the justice system to call upon the vast reservoir of experience represented by retired judges, whenever their services are needed. Indeed, this is precisely why the appointment of a former judge under section 168(2) is only for “a limited period”. A limited period fits perfectly into the “fixed term” permitted under section 186(3), which makes an exception for acting judges appointed for a “fixed term”. It is to be used in exceptional circumstances and this was one occasion that met those conditions. It would be tragic if Zimbabwe were to deprive itself of opportunities to resort to its pool of retired judicial experience whenever exceptional circumstances demand it.
From the foregoing, it is clear that unbeknown to Zibani and his advisers, the framers of the constitution anticipated a situation such the one that necessitated bringing back Justice Ziyambi from retirement, hence the existence of both section 168(2) and section 186(3) of the Constitution. The appointment of Justice Ziyambi was perfectly proper, constitutional and valid and the judgment of the Supreme Court was also also proper, constitutional and valid.