22 August 2018

Zimbabwe: A Deep Dive Into the World of the Constitutional Court

opinion

No one can deny that this election season has been a roller-coaster and people are confused, anxious and hopeful as they face an unpredictable outcome from the Constitutional Court (ConCourt) in the petition lodged on behalf of the MDC-Alliance presidential hopeful Nelson Chamisa challenging the outcome of the presidential elections.

Much has been speculated, deductions have been made from the little others have gathered and to be honest, it feels like the better part of Zimbabwe has gone through a crash course in constitutional law as everyone is trying to make sense of the petition, the court handling the case, the procedures involved and the honourable justices handling the case among other things. This article will explore these and many other questions to try and make sense of what has confused some of us and briefly explain exactly what is going on.

The ConCourt is a superior court of record and consists of the Chief Justice (CJ) and the Deputy Chief Justice (DCJ) and also five other judges, though currently this should be read alongside paragraph 18 (2) of the 6th schedule to the Constitution which prescribes that for the seven years from May 22, 2013 the ConCourt will consist of the CJ, the DCJ and seven other judges.

While much has been said about the court being tasked with its first major case, this is not true. The court has decided many important judgments that only need one to read through their case records to see why this is the case. The petition is not the first presidential challenge it is hearing. The court had occasion to deal with this in Tsvangirai v R G Mugabe & Others (CCZ 20/17), Constitutional Application No. CCZ 71/13 [2017] ZWCC 20 (August 20, 2013). This will be the second time the court is dealing with the same provision under the new Constitution.

The petition seeks to get the court to declare the electoral process invalid and accordingly set aside considering the evidence they allegedly have, or to alternatively order a fresh poll because the data the Zimbabwe Electoral Commission (Zec) has is too compromised to be made the basis of anything. Contrary to what many have been speculating, this is not a criminal case, but it is closer to a civil case which basically means those found to be on the wrong side of the law can only be found liable of something not guilty, and they will not go to jail, but the court at its own discretion will make necessary orders within their powers. The outcome of the presidential petition will not nullify the election of the elected members of the National Assembly and any challenges arising from those elections are dealt with by the Electoral Court which is a division of the High Court. The CJ has declared all High Court judges, Electoral Court judges which means that all of them can sit as a court and hear any challenges to the National Assembly elections.

Is the court's integrity, competence and independence a valid concern?

Some have questioned the impartiality of the court and in the process have made allegations which are largely unfounded and unsubstantiated. The track record of the justices will show that many of them have in the past made determinations against the government and made daring judgments. The court itself has in the past made landmark rulings which include the ban against child marriages in the widely publicised case of Mudzuru v minister of Justice. The case has been a hallmark case that received international praise for the progressiveness displayed by the court. That judgment was penned by the current CJ Luke Malaba.

Another notable case is the permissibility of dual citizenship which government had bitterly refused to concede to despite being based on the new Constitution. This was addressed rather succinctly by the court in Mawere v Registrar-General (RG), a case ruled in favour of Mutumwa Mawere, who challenged the refusal by the RG to grant him a replacement identity card. The RG wrongfully argued that because Mawere acquired South African citizenship, he was precluded from having a Zimbabwean identity document simultaneously. The court held that a citizen by birth is not precluded from having dual citizenship. It would be amiss for one not to include the progressive judgment of Makoni v minister of Justice where Tendai Biti successfully argued on behalf of his client that a life sentence without the possibility of parole was not constitutionally sound. The court agreed and held that a life sentence imposed on a convicted prisoner without the possibility of parole or release on licence constitutes a violation of human dignity and amounts to cruel, inhuman or degrading treatment or punishment in breach of sections 51 and 53 of the Constitution.

As one can tell, the ConCourt is quite progressive though it is not given much credit for its efforts. Anyone who has taken time to read through their judgments will see that many of them have no regard for who the party is and apply the law contrary to some media reports and sensationalist rhetoric that is devoid of facts.

In this regard, we urge the public to read the past decisions of the court to see how the judges have reasoned previously. This gives a good idea of the creed of our ConCourt justices. Many of their judgments have been cited in foreign cases and any good lawyer knows that this speaks to the integrity and soundness of a ruling. Like all humans, they may get some aspects of the law correct, but this should not be taken to mean they are a pliant bench that is unable to hold its own. For the work of the courts and past judgments, one can access the Veritas or ZimLegal Information Institutes (ZimLii) websites where these judgments appear.

Brief profile on the honourable Justices of the ConCourt

The court will be composed of Malaba (CJ), Gwaunza (DCJ) and seven other judges. CJ Malaba got his law degrees in 1974 from the University of Warwick and in 1982 from the University of Zimbabwe. His notable rulings include, but aren't limited to the 2013 case in which Jealousy Mawarire sued then President Robert Mugabe compelling him to set the date for the election. The majority ruled in favour of Mawarire's application, which ensured that elections were held by July 31, 2013. Malaba was one of the only two dissenters together with Justice Patel. Godfrey Chidyausiku had handpicked judges for the Electoral Court following the 2005 elections and the losing MDC candidates challenged this. Malaba ruled that it was improper and unconstitutional that s162 of the Electoral Act was inconsistent with the Constitution and declared it invalid and held that Chidyausiku's act of appointing judges on its terms was invalid. The notable words in this judgment were, "... 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 s18 (9) of the Constitution."

Justice Gwaunza was admitted as a legal practitioner of the High Court of Zimbabwe in 1987 and a judge of the High Court of Zimbabwe in August 1998 respectively. In November 2002, when she became judge of the Supreme Court she also made history becoming the second woman to sit on the Supreme Court after Justice Vernanda Ziyambi. In March 2018, she succeeded Justice Malaba to be the Deputy Chief Justice of the ConCourt.

This year she ruled that Thokozani Khupe's ConCourt application challenging her dismissal from Parliament had merit.

Another member of the bench will be Justice Patel who is known for his sharp constitutional logic and reasoning.

He penned the judgment that reversed the bizarre order given by the High Court in the Zibani v JSC matter where the court ruled that a constitutional provision was unconstitutional. Justice Patel reasoned that the Constitution could not be replaced or subverted based on a Cabinet intention to amend the Constitution. Together with his fellow justices, the case was dismissed, and the judgment is still seen as one of the most spirited protections of the Constitution and the independence of the judiciary despite the amendment sailing through Parliament after.

This petition the court will sit for is of such national importance, national broadcaster Zimbabwe Broadcasting Corporation has been allowed as the host broadcaster to live stream the court proceedings in the interest of the nation as per International Telecommunication Union's regulations. This sets a good precedent as people wanted to have the live stream.

The presence of others like the delegation from the International Commission of Jurists (ICJ) which has sent African jurists to observe the poll challenge shows how important this case is. It is interesting to note that some of the ICJ's deployed jurists are African judges and Jurists Forum secretary-general Martin Masiga (Uganda) with Retired Chief Justice Earnest Sakala (Zambia) and Justice Isaac Lenaola (Supreme Court of Kenya). Their presence plays a huge role in further stamping the independence, impartiality and courage of the ConCourt at a time Zimbabweans desperately need such assurance.

It is indeed a case to look forward to and a chance for our justices to publicly display and market our judiciary... just saying!

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