Of unconstitutional constitutions and supreme Cabinet memos

I know I have previously expressed my concerns with some judgments by our courts, but this time around I don’t even think concern is the right word to describe my thought patterns around the recent case of Zibani v Judicial Service Commission (JSC). The appropriate words to describe this case are disturbing and bizarre.

Source: Of unconstitutional constitutions and supreme Cabinet memos – NewsDay Zimbabwe December 31, 2016

Guest Column: Paul Kaseke

In this case, a final year law student at the University of Zimbabwe, Romeo Zibani, brought an application to stop the JSC interviews for the Chief Justice post which becomes vacant next year when Chief Justice Godfrey Chidyausiku turns 70, which is the age of retirement. The basis of Zibani’s application was that the panel conducting the interviews supposedly enjoys a cosy relationship with the candidates which in Zibani’s opinion, would render the process illegitimate and unlawful because of a conflict of interest. In addition to that, Zibani argued that the selection process must be stayed until an amendment of the provisions of the Constitution governing the selection process takes place. Rather absurdly, Zibani also sought to compel the Minister of Justice to push through an amendment of the Constitution which would give the President the sole power to appoint candidates without the assistance of the JSC. How Zibani was aware of a possible amendment of the provisions is still baffling, but so is the fact that the Vice-President cited in his capacity as Justice minister, presented documentation to prove that an amendment was being discussed at Cabinet level. Basically, the Ministry of Justice supported the application by providing the documents which the judge relied on extensively. Reading between the lines, one can suggest that there must have been some internal information the applicant was fed with before lodging his application.

There are a number of firsts that this case presents. The first is the awkward citation of the parties. In the papers, the President is referred to as “Cde Mugabe” — a very weird term to cite anyone in court proceedings.
Secondly, Zibani sought to interdict a process set out in the Constitution and, by implication, suspend a provision of the Constitution. Thirdly, Zibani intended to force the Executive to make an amendment to the Constitution when, in fact, the task of amending the Constitution is a Parliament-driven process which Parliament itself cannot be compelled to do.

I find myself unable to view this application as a bone fide application because it simply makes no sense that a final year law student has money and time to litigate a matter of this nature which has no direct bearing on his life, but furthermore, that he would rely on lines of reasoning that fly in the face of everything he should have learnt in his time at the Law Faculty. The firm that represented him is one of the country’s top firms and one can only wonder how the student raised the money to fund this court case. Nevertheless, like every citizen in our country, he has the right to bring a matter before the courts if he feels aggrieved by it and he has seemingly exercised such a right.

The baffling nature of this case doesn’t lie in the arguments made nor the applicant’s motives, but the judgment by Justice Hungwe. From the outset, I need to highlight that the judgment is neither coherent nor legally sound and I say that with the greatest of respect. It may well be the most regressive judgment handed down since the enactment of the 2013 Constitution.

Non-constitutional fails of the judgment

Let’s dispense with the non-constitutional aspects of the judgment that went wrong.

An interdict has four traditional requirements that need to be met before it can be granted. One of these requirements is that there must be a right the complainant is using to trigger the processes and that without the court’s intervention, such a right would be violated. In this case, Zibani had no right that stood affected even though Justice Hungwe thought there was a right. The right he relied on was one of good governance. It must be noted that such right does not exist in our Constitution or in our common law. Good governance as a concept is located in the Constitution as a national objective used to interpret rights, but is not a right of its own. Sadly, Justice Hungwe interdicted a constitutional process based on an imaginary right. Zibani cannot be said to have a right in this matter — at best he had and has an interest, but even that interest is not sufficient to ground an application for an interdict. This should have been the end of the matter.

More interestingly, Justice Hungwe found that the matter was an urgent application when in fact no such urgency existed because it is the applicant who caused the urgency. Generally, if an applicant causes the urgency by delaying to bring his matter when he had time to do so, he is precluded from bringing an urgent application. In this case, Zibani knew about this process and as a student of law, should have known this to be so when he studied constitutional law. This process of selection as set out in the Constitution did not just emerge this year, it has been a part of our Constitution and if Zibani really cared about these processes then he should have followed the press and commentary around this matter more closely when it first became topical in mid-2013. If he felt aggrieved by it he should have acted on this as far back as 2012 when the draft Constitution became public and more so in 2013 when it became law. Why he had to wait until the very last minute is what gives away the motives behind this application. This was nothing short of a frivolous and mischievous application that should have been rejected without delay but Justice Hungwe found otherwise.

Constitutional fails

The reasoning of the judge boils down to a suggestion that the constitutional framework that provides for the selection of the Chief Justice is at odds with the Constitution. How can the Constitution contain unconstitutional provisions? How can a constitutional process be deemed unlawful or improper?

Justice Hungwe went further to rely on a memo from Cabinet that indicated the intention of Cabinet to make an amendment to the Constitution. It was this memo that the judge felt should be taken more seriously than the Constitution. The JSC, per the judge, should have taken notice of this intention to change the Constitution. Not only is this absurd, it is without legal basis. The fact that the government is contemplating an amendment to the Constitution is immaterial because the Constitution is not changed in cabinet meetings nor is government able to amend the Constitution without going through Parliament. It is also impossible for any citizen to compel the government to make changes to the Constitution and more so for the courts to order the government to make such amendments to the Constitution. It seems to me the learned judge accorded himself powers that are beyond his authority and as such acted ultra vires.

While purporting to be advancing the independence of the judiciary with his judgment, the judgment poses a great threat to the independence of the courts because it places the Executive in control of the selection process contrary to what the Constitution states. It is often said there are two ways of reaching a decision in courts — one is to work through the relevant law and apply the law to the facts then come up with an answer and the other is to work in the reverse of that, that is, to have a conclusion first and attempt to find principles to support the conclusion. It seems to me that Justice Hungwe had already fixed his mind on interdicting the JSC interviews and then tried to find the law to support his decision, which he did albeit clumsily. There is no right to good governance though Justice Hungwe referred to it no less than 10 times. In fact, he mentions good governance more than the Constitution does. Justice Hungwe did not just interdict the JSC interviews, he basically invented a constitutional right to good governance and ironically by doing so, he violated the same Constitution he purported to be bound by. By setting aside a constitutional process in favour of ‘intentions’ of the Executive, the independence of the judiciary as guaranteed by the Constitution was trampled on. In this judgment, Justice Hungwe showed allegiance to the Executive rather than the Constitution he pledged to advance.

I am still waiting to read that this judgment was a figment of my imagination or some extended April Fools’ joke because judgments like these pose a threat to constitutionalism as we know it.

Paul Kaseke is a legal adviser, commentator, analyst and sessional law lecturer with the Wits Law School & Pearson Institute of Higher Education (formerly Midrand Graduate Institute). He serves as Director and current Group Chair of AfriConsult firm. He writes in his personal capacity. You can give him feedback via email: feedback@paulkasekesnr.com or follow him on twitter @paulkasekesnr