Chief Court Reporter
THE High Court decision that the recent constitutional amendment allowing judges to opt to serve to 75 if in good health does not apply when it comes to Chief Justice Luke Malaba and any other sitting judge of the Constitutional and Supreme Court, has not plunged the country into a constitutional crisis, a high-ranking Government official has said.
A three-judge panel of the High Court Justices Happias Zhou, Edith Mushore and Jester Charewa last on Saturday granted an urgent application stopping Chief Justice Malaba from benefiting from the changes to the Constitution.
The application was urgent as he turned 70 on Saturday and had opted to continue in office.
Speaking after the swearing-in of five judges of the Constitutional Court, Justice, Legal and Parliamentary Affairs Secretary Mrs Virginia Mabhiza pooh-poohed claims making rounds in certain billets of the media that the recent court decision crashed the nation into a constitutional crisis.
“What we see is not a constitutional crisis,” she said. “Parties have brought their cases before the court and it is entirely up to the court, the institution to which matters have been brought, to make a decision on whether or not to preside. So there is no constitutional crisis at all. As you can see that the courts are functional.”
Justices Paddington Garwe, Rita Makarau, Anne-Mary Gowora, Ben Hlatshwayo and Bharat Patel took their oaths of office before Acting Chief Justice Elizabeth Gwaunza at a ceremony held at the Constitutional Court.
Mrs Mabhiza said the appointment of substantive judges of the Constitutional Court was a milestone, more importantly an alignment process of the country’s practices with the Constitution; the grace period allowing the Supreme Court to sit as the Constitutional Court expired last year and acting judges, the ones who in fact were formally appointed this week, have been sitting.
“It is a compliance issue whereby we have fulfilled what the Constitution requires that there be substantive judges to the Constitutional Court,” she said.
“So we welcome the development. You may also want to know that recently we had Constitutional Amendment Number 2 and we can also see its fulfilment through this process that has just taken place.”
The five were appointed to the Constitutional Court from a list of nominees prepared by the Judicial Services Commission, following public interviews to fill the vacancies for Constitutional Court judges on September 28 last year, where 12 shortlisted candidates were interviewed.
The need for Constitutional Court judges arose following the split of the Supreme Court and Constitutional Court benches in May last year in compliance with the Constitution, which provides for the separation of judges on the two benches.
The Chief Justice and Deputy Chief Justice sit on the Constitutional Court by right, but the other five judges are appointed as individuals from the pool of qualified and experienced candidates.
Until May last year, transitional provisions of the 2013 Constitution set the Constitutional Court to consist of the Chief Justice and the Deputy Chief Justice and seven other judges of the Supreme Court sitting together as a bench to hear any constitutional case.
As a temporary expedient, Chief Justice Malaba appointed the five senior judges of the Supreme Court to act as acting judges of the Constitutional Court.