Sharon Hofisi Legal Matters
In not so distant future, Deputy Chief Justice Luke Malaba will be sworn in as the Chief Justice of Zimbabwe. The Chief Justice is a pillar in our entire justice system. He is expected to exhibit qualities that include proper judicial temperament such as punctuality and common sense.
One judicial quality that cannot escape my attention, is punctuality.
What does it mean to be clothed with adjudicatory powers and what does it actually demand?
The answer can be gleaned from the punctuality of the CJ designate himself. In 2012, Justice Malaba said something that defines a judge of his calibre. Describing the late Justice Sandura, Justice Malaba remarked that Justice Sandura passed numerous important judgments without fear or favour.
He referred to Justice Sandura’s ability to dissent and reach unanimous views with his brother or sister judges. Justice Malaba also stated that the late judge provided a lucid exposition of often complex legal questions by an application of an analytical mind conscious of the duty to do justice to all manner of man without fear or favour.
And when the debate on the envisaged first constitutional amendment seemed to have reached its zenith, the Chief Justice (CJ) designate, Justice Luke Malaba, eponymously got appointed by the President of the Republic of Zimbabwe.
We await to have him swear to uphold our home-grown Constitution. His service at the Bench-descriptive of presiding officers and the judicial functions-has doubtlessly become grander. Having distinguished himself as a Deputy Chief Justice, his elevation to the highest judicial position speaks volumes of his suitability thereof.
His meritorious appointment as the Chief Justice comes from self-actualisation — one that has carried himself and the judicial fraternity as a whole. It came out during the public interviews conducted by the Judicial Services Commission (JSC) that he had 300 written judgments.
The erstwhile CJ, Justice Godfrey Chidyausiku, once spoke about the need for one judge to write judgments in time.
Three hundred is a figure that strikes me (and perhaps every litigant or lawyer) as an illustrious mark of excellence for a judge who has also been the Deputy Chief Justice (DCJ). He doubtlessly had a tight administrative rota to attend to.
While the process of appointing the top judge in this country seem to be veiled in inscrutability-though three nominees have to emerge from the public interviews that would have been conducted by the JSC — we now know that his appointment was based on merit. He scored 92 percent and outshone his colleagues.
When we add 102 of his judgments that were reported in the Zimbabwe Law Reports, it becomes clear that he has a legacy. We are forced to agree with his remarks during the public interviews that “no one can question the level and quality of my judgments in this country”.
Constitutionally speaking, Justice Malaba is a product of the JSC’s independence. This is so because in the not so distant past, the JSC appealed against the granting of an interdict stopping it from interviewing prospective candidates for the position of Chief Justice. The interviews were conducted under the auspices of the JSC as envisaged by the Constitution of Zimbabwe, 2013.
Theoretically, all the prospective candidates who were interviewed could have been appointed. This is because the JSC is required to send the list of three nominees to the President, who then appoints the candidate of his choice.
Effectively, the appointed CJ has come from someone who not only understands the Bench, but is largely, like all eponymous characters, considered to be someone who was appointed on merit. This was also affirmed by the spokesperson of the appointing authority, George Charamba.
For starters, the appointment of a CJ makes an enormous difference to the concept of separation of powers and to the development of our Constitutional jurisprudence. The difference which it precisely makes is that of safeguarding the interpretive function of the Judiciary as well as the sacred nature of the Constitution as the supreme law of the land.
Justice Malaba is able to be a judge who knows the courtroom, the community and the Government. A judge in the courtroom is both the court and case manager. I have had occasion to appear before him and he has the unequalled ability to handle legal counsel and their clients. The number of judges alluded to above demonstrates his distinguished capacity as a case manager.
The community or people’s judge derives his power from the community that he or she serves. The Zimbabwean community is defined as a diverse community when we read the “We the People of Zimbabwe” clause that is in the preamble of our Constitution.
A close scrutiny of the list of his judgments may be difficult in this piece, but the Mudzuru judgment serves a constitutional purpose. Section 78 of the Constitution, the marriage rights provision, puts 18 years as the age of majority. Justice Malaba set the pace for the alignment of marriage laws with the Constitution.
The constitutionality and prioritisation of the amendment of criminal laws that still treat a young female person as someone below 16 years can now be measured in terms of the Mudzuru judgment. This ultimately protects the rights of women, both from a fundamental rights perspective and from the value-based system in our Constitution that treats the rights of women as one of our founding constitutional values and provisions.
We celebrate his appointment simply because judicial reasoning is always fascinating. He adopted the purposive interpretation of section 78 and his Mudzuru judgment progressively protects and promotes the rights of children. They cannot be pledged into marriage. They cannot be married off at tender ages. They are legally empowered and emancipated to fight the shackles of patrilineal and patriarchal unpalatable norms.
Leonard Levy in his seminal book “Original Intent and the Framers’ Constitution” (1988), aptly states that “the life of law combines logic and experience, blended with a spice of insight”.
The Deputy Chief Justice (as he then was) had to construe the meaning of the constitutional provisions relating to rights of citizens, as a sacred text, speaking from the past to the present and into the future in that scriptural voice that does not easily explain, but has to be interpreted by Courts of law.
For instance, the Constitution should be interpreted wholesomely considering the preamble, the supremacy clause, founding values, and the provisions of the Bill of Rights. His finding in the Loveness Mudzuru case largely reflects this approach.
As a “political judge”, in the light sense of that description, his roles are best understood by looking at the Governmental functions of a CJ. A CJ is also part of Government in light of the three arms of Government — Executive, Judiciary and the Legislature.
Put simply, the appointment of a CJ could also come down to whether the Government will be best represented in one of its arms, which would require the President to appoint someone best suited in this regard.
What might be important at this juncture is that Justice Malaba has been deputising Chief Justice Chidyausiku. That in itself counts in his favour.