DEVOLUTION OF POWER: Democracy or Juristocracy?

1. Introduction 

On 11 January 2023, the High Court of Zimbabwe struck down section 314 of the Urban Councils Act. Justice Munangati-Manongwa ruled that the Minister of Local Government’s power to reverse local authority decisions is constitutionally invalid. Even though the court order has no force or effect unless confirmed by the Constitutional Court, it will spark spirited discussions regarding state structure and the proper allocation of powers between the centre and the periphery. According to the ruling, the Constitution grants residents the power to manager their own affairs. Thus, popular power cannot be subjected to a ministerial veto. It is not clear whether this laudable theory of direct democracy is supported by the constitutional text.  

2. Devolution 

Devolution is a discretionary grant of power by a sovereign entity to regional or sub-regional units. It is exercised in unitary states where centrality of power is constitutionally guaranteed. A devolved power is one that is transferred from the centre whilst a reserved power is maintained thereat. In federal unions, regional autonomy is not ordinarily subject to the government of the day. It is constitutionally guaranteed, whilst a devolved power can be revoked by ordinary law. 

Consider the governments of the UK and the US. The US is a federal union of 50 states. No Act of Congress can diminish state autonomy. This is consistent with the motto on the great seal e pluribus unum (from the many: one). On the other hand, the UK is governed as a unitary state out of Westminster. It was only through devolution legislation that various levels of autonomy were granted to Wales, Scotland and Northern Ireland. This is in keeping with the latin maxim ex uno plures (from the one: many). The Federation of Rhodesia and Nyasaland was our brief experiment with federalism, after which the state remained unitary. 

Concordantly, the current Constitution does not demand devolution of power, but only provides authority for its implementation. This is self-evident in the wording of section 264(1) of the Constitution:  

Whenever appropriate, governmental powers and responsibilities must be devolved to provincial and metropolitan councils and local authorities which are competent to carry out those responsibilities efficiently and effectively.

Assessment of competency and the decision to devolve are both left in the hands of the elected branches. In other words, it is a political question decided through electoralism. Constitutionalism is not the exclusive preserve of judicial processes. When the Constitution delegates decision making to elected branches, those entities have the primary authority for constitutional enforcement. This is the case with impeachment of the president, parliamentary recall as well as constitutional review of bills by the Parliamentary Legal Committee. In the same vein, a government can opt to legislate for devolution, whilst a different government could opt for its revocation. Neither the act of devolving power, nor that of reserving it, would constitute a constitutional violation. Devolution is, by definition, subject to the government of the day. 

Thus, it is not readily apparent whether a litigant can sue for invalidation of a law because it is contrary to reasons provided for a discretionary power yet to be exercised. Neither is it clear that section 314 of the Urban Councils Act is a devolved power subject to chapter 14. The High Court presumed that devolution has occurred, or is required to occur, without discretionary leeway to the government. Maintenance of reserve powers was treated as ipso facto evidence of constitutional violation. The positive authority for devolution when appropriate was construed as empowering the court to be a negative legislator against the powers of central government. In so doing, the court treated a unitary state as though it were a federal union in which regional autonomy is constitutionally guaranteed. It also approached the discretionary power to devolve as though it were a justiciable right to devolution. 

This is particularly remarkable given that the decision to devolve is wholly subjective. It is not decided based on an objective assessment of whether a reasonable person would devolve power. As the Constitutional Court stated in Sam Sipepa Nkomo vs Minister of Local Government CCZ 06/16: 

In terms of s 264(1), the division of the provinces into districts is to take place whenever appropriate. The section is not cast in mandatory terms. The State has been given a constitutional mandate to decide when it is appropriate and it is not for the applicant to make that decision.

Thus, it is settled law that the power to devolve is discretionary, rendering the High Court judgement somewhat tenuous. 

3. Preamble to Chapter 14 

The High Court judgement cites the preamble to chapter 14 of the Constitution which is couched as a peremptory norm:

there must be devolution of power and responsibilities to lower tiers of government in Zimbabwe. 

Preambles fall into three categories: ceremonial, interpretive and substantive. These were expounded in Mathew Sogolani vs Minister of Primary and Secondary Education CCZ 20/20. Ceremonial preambles use abstract language without being an independent source of rights or obligations. Interpretive preambles are an aide to interpretation, but remain subservient to the actual text. Substantive preambles are those like the former Constitution’s section 11 (prior to the 14th Amendment) which was a numbered section and was held as forming part of the Declaration of Rights (see Rattigan and Ors v Chief Immigration Officer and Ors 1994 (2) ZLR 54 (S)).

In Sogolani, the preamble to the current Constitution was found to be symbolic. In essence, it means certain words in the constitutional text form no part of the constitutional law. For this reason, section 335 excludes all tables of contents, headings and other references from the constitution proper. The Constitution starts from section 1 and ends with section 20 of the sixth schedule. The preamble is, as the name suggests, before the constitution. It introduces, but forms no part, of the constitution. Like the references excluded by section 335, it is a sign post pointing towards a destination to which it can never reach. The preamble to chapter 14 might be useful in understanding the rationale for devolution, but cannot be an independent source of rights and obligations. It is subservient to the actual constitution. When the preamble states that there must be devolution, that can only be read together with 264(1) which makes that power elective. The Constitution is always read as a whole. Devolution cannot be deemed mandatory on the basis of a preamble when the next section asserts that the power is wholly discretionary. 

4. Autonomy of Local Authorities 

Per the High court, local authorities have autonomy to run their affairs independent of central government. Put differently, the Minister’s powers constitute an undemocratic intrusion on constitutional autonomy. Local authorities are subject only to the Constitution. Yet section 276 (1) subjects local authorities to both the Constitution and Acts of Parliament: 

Subject to this Constitution and any Act of Parliament, a local authority has the right to govern, on its own initiative, the local affairs of the people within the area for which it has been established, and has all the powers necessary for it to do so.

This must not be confused with parliament’s power to make by-laws and levy rates under section 276(2). 276 (1) allows parliamentary supervision of constitutional self-governance via statute. That statute is the Urban Councils Act. Section 314 of the Urban Councils Act is based on this 276(1) power. Since the power of local authorities is not subject only to the Constitution, the minister’s powers are in accordance with the constitutional structure of governance. 

It must be added that, if local authorities had constitutional independence, this would dispense of the need for devolution entirely. Power need not be transferred to bodies which already enjoy constitutional autonomy. The chapter 14 power is precisely because local authorities are subject to the national government since Zimbabwe is a unitary state. This is confirmed by section 270(3) of the Constitution: 

Members of a provincial or metropolitan council are accountable, collectively and individually, to residents of their province and the national government for the exercise of their functions.

The Constitution envisages local governance as accountable to both local residents and central government. Whilst this provision relates to provincial and metropolitan councils, it highlights the constitutional relationship between local authorities and national oversight; central government for the provincial and metropolitan councils and statutory oversight for local authorities. It may be undesirable when ministerial oversight undermines the electoral power of residents through needless interference, but that does not make it unconstitutional. The Constitution does not define devolution as mutually exclusive with national oversight. In fact, governmental supervision animates the verticality of checks and balances between the centre and the periphery. 

5. Will of the People 

The High Court insisted that the current Constitution is distinct from its predecessor because the latter was negotiated to resolve a political impasse. Whilst the current Constitution is indeed free from the former’s colonial entanglements, it is also the result of an impasse between political parties following a disputed presidential election. The term disputed in this case denotes more than protestations or filing of a court petition. It refers to fundamental legitimacy questions raised by regional bodies such as SADC and AU, resulting in the Global Political Agreement (GPA). The current Constitution is a product of that process. The people’s participation actively necessitated, rather than obviated, the need for compromise; an essential condition for the synthesis of diverse views into a single text. If anything, the COPAC process engrained the GPA compromises with constitutional permanence. Whilst some called for devolution, others wanted a strong central government. As local authorities sought greater autonomy, central government insisted on national oversight. Just as with the impasse of 1979, neither side won outright. 

This is what happens when a people find each other. A constitutional centrism emerges, synergizing left and right through fundamental concessions. The people referred to in the Constitution are this collective whole: those who sought autonomy in local authorities and those who sought government oversight. Those who sought conservative approaches and those inclined to be more liberal. The chapter 14 remedy is electoral. It is not judicial. Local authorities and/or residents do not get to decide whether power will be devolved through judicial pronouncements. Rather, voters writ large get to decide through the ballot box. This means political parties can legitimately campaign on the promise of devolving power (or reserving it). Asking the judiciary to pick winning sides ex-post enactment of political compromises poses the risk of vitiating the accord upon which the constitutional draft secured broad endorsement and referendum success. This would also displace democratic discretion with juristocratic judgements, with the effect of supplanting the very same sovereign will and popular legitimacy which the High Court sought to uphold. 

NB. Contrary to a tradition established by the Constitutional Court, the High Court ordered the Minister to pay legal costs for defending his statutory powers in constitutional matter – an issue beyond the scope of this post. 

DELIMITATION: REDISTRICTING OR PARTISAN GERRYMANDERING?

Delimitation refers to redistricting of electoral maps. It accounts for changes in population demographics to achieve equal representation in single member districts. In countries like the United States, it is a hot-button issue because it is mainly done by legislative majorities in service of plurality/first past the post systems. These are winner-take-all elections in which all votes for losing candidates amount to wasted votes. They have no effect on incumbency. This makes redistricting particularly salient as electoral minorities can create voting boundaries which ensure long-term incumbency without mastering the support of popular majorities. This is the practice known as partisan gerrymandering. 

Zimbabwe employs a winner-take-all system for the presidential election. Since the president is elected nation-wide, delimitation is of no consequence to the highest office. The directly-elected seats in the National Assembly and local authorities are vulnerable to gerrymandering. However, the votes cast for losing candidates in these elections are not entirely wasted. Through a system of proportional representation, they are used to compute the quota allocation of senators, women and youth parliamentarians, as well as provincial councillors. In this way, Dr. Thokozani Khupe secured two proportional representation seats in 2018 in spite of her poor return in the direct elections.  Gerrymandering remains a danger to democracy, but the constitution reduces its effect through hybridity of the electoral system. 

A partisan gerrymander is unfair because the electoral maps concerned lack partisan symmetry. Partisan symmetry requires that the vote total in a district must translate to the same number of seats no matter which party secures such total. Thus, if party A secures fewer seats than part B from the same total number of votes, then it is the victim of a partisan gerrymander. Another way of showing a partisan gerrymander is using the efficiency gap which divides the total number of wasted votes by the total number of votes cast. An efficiency gap of over 7% or below -7% was established by University of Chicago Professors as empirical evidence of gerrymandering. 



It is obviously premature to make a claim of gerrymandering from the preliminary delimitation report. That would require the election results. Commentators are slow to make this admission, instead making claims of ‘smart’ or ‘subtle’ gerrymandering. Dr. Phillan Zamchiya’s great piece shows that there has been some redistricting which works in the opposition's favour (ZEC has not bothered to create a significant number of new constituencies in areas where ZANU PF has a chance to win) and some which ZANU PF would commend (In ZANU PF’s perceived areas of electoral dominance there has been little reconfiguration of constituencies). A non-partisan process would produce such variegated results, eliciting both discontent and delight across the political divide. It cannot point to gerrymandering, as that would require the actual election results. 

Thus, ahead of the electoral outcome, there is less focus on the contents of the report, and more scrutiny of whether a constitutional infringement could render the entire process nugatory. The relevant part of the Constitution provides as follows: 

…the Commission may depart from the requirement that constituencies and wards must have equal numbers of voters, but no constituency or ward of [a] local authority may have more than twenty per cent more or fewer registered voters than the other such constituencies or wards.

The Lancaster House Constitution, as amended, provided as follows: 

the..Commission … may depart from the requirements of subsection (4) [equal representation] , but in no case to any greater extent than twenty per centum more or less than the average number of registered voters in House of Assembly constituencies.

The argument is that these two provisions are not the same. Whilst the former Constitution allowed a 20% variation, it is only a 10% variation above or below the average which would meet the current Constitution's limit of 20%. This cannot be correct. The Constitution can only be amended in express terms – never by implication ( 52(1) of former Constitution and 328(2) of current Constitution). If COPAC sought to change the import of this provision, it would have stated in clear and unambiguous terms that 20% is now a reference to total variation, whether above or below, the constituency/ward average. 

Instead, the wording of the former constitution is retained almost in toto. Those questioning ZEC’s approach do not dispute, indeed they confirm, that the former Constitution allowed for variation of 20% above or below the average. This is relevant since the wording of the former and current constitutions is almost identical. It diverges only by omission of the phrase ‘average number’ and replacement of less than with fewer than. The current Constitution is also broader as it includes local authority wards for the same variation. Notwithstanding these incidental differences, the actual percentage for variation is precisely the same. 20 percent more or less than the average in the former Constitution, and 20 percent more or fewer than other constituencies and wards in the current Constitution. This cannot amount to an amendment of the percentage variation, let alone one that is in express terms. It is eminently a case of constitutional continuities. To this extent, the approach by ZEC is unimpeachable.  

Redistricting is not done by partisan legislators in Zimbabwe. It is conducted by an independent constitutional commission led by a judge or someone qualified for judicial appointment. The independence of ZEC and that of its chairperson are important institutional safeguards, the latter of which ensures legal interpretation is internally subject to judicial supervision. These measures insulate ZEC, and the elections it conducts, from partisan manipulation. Whilst the elected branches can refer the delimitation report back to ZEC, its subsequent decision is final. When viewed in light of the system of proportional representation and its effect on wasted votes, these important features should serve to increase public trust in the electoral system broadly and inspire more people to participate at the polls. Yet the perpetual paradox of political commentary lay in consistent condemnation of the same system we hope that people will, somehow, believe in with sufficient confidence as to register to vote en masse. 

CCC: Citizens at the Center?

On 24 January 2022, Nelson Chamisa launched a new political party, the Citizen Coalition for Change (CCC). This also signaled the demise of the MDC Alliance Party, a short lived stand-alone formation which existed following the 2018 elections and distinct from the 2018 coalition of seven parties. The main ideology of CCC was presented as re-centering the citizen in policy and decision making. This announcement, laden with claims of a people-centred revival within the main opposition party, was paradoxical in several ways, raising fundamental questions over the nature and purpose of political parties. 

Political parties generally have a space for citizens in the form of their members. That membership is the highest voice in the political organization. It constitutes the party (party formation) can reconstitute it (constitutional amendment) and even terminate it (party dissolution). The members choose party leaders who remain subject to the membership’s ultimate authority. This explains why the most fundamental issues are reserved for party members as represented at congress, the supreme and most representative organ of any party. 

Consider article 19 of the MDC Constitution for comparison. This is the contested document which applied to the MDC Alliance until they claimed to be a stand-alone party. According to that document, dissolution of the party is moved by one third of congress attendees/two thirds of provincial executive committees and adopted by three quarters of the total congress membership. It is not an announcement made during a press conference following consultations. There are procedural hurdles and a high level of demonstrable consensus commensurate with the objective of keeping party actions consistent with the majoritarian voice of its membership. Further, article 19 states that in the event of dissolution, any assets will be disposed to a charitable cause chosen by the National Council and shall not benefit any member. In other words, the constitution provides for the procedure and consequences of dissolution. 

The current scenario is somewhat bizarre. The institutional pillars which give a voice to the people (congress and the constitution) have been side-lined in the process of claiming a re-centering of the citizen. Not only has an entire party been dissolved with neither congressional approval nor constitutional reference – but a new party has been formed with no popular acclamation through congressional process. Often, party congresses endorse actions taken by party leadership in hindsight, but there seems no desire for this eventuality. This is reminiscent of the chaotic manner in which the transition from the Tsvangirai era was handled. There is no congressional process, no explanation regarding assets on the party books and no reference whatsoever to the MDC Alliance Party Constitution. In fact, the party constitution has become an almost mythical document; not produced in court process and efficiently hidden from the public eye, forever shielded from contestation and public reflection. 

There are many ways of centering the citizen including increasing the scope of congressional power and making party organs more inclusive and representative. A press conference in which political leaders take centre stage and announce that citizens will be at the center seems both ironic and counter-intuitive. This is made worse by the impression that the new party is modeled singularly around the person of Nelson Chamisa and his social media hashtags. 

Many are not bothered by this minutiae and would rather embrace a political identity distinct from that of Douglas Mwonzora in order to reap an electoral dividend as the by-elections draw closer. However, some of us believe political parties are the great laboratories of our democracy, with party behaviour foreshadowing governmental practice and national culture. Constitutional misfeasance is the gateway to democratic backsliding and institutional capture. Thus, we are left with the following unresolved questions: 


1) What was the provision for party dissolution in the MDC Alliance Party Constitution?

a) Could it be done by mere press conference (even after consultations)?

2) What is the provision for party formation in the CCC Party Constitution? 

a) Can it be done by mere press conference (even after consultations)?

If the answer to either is affirmative, then a significant deficit in citizen participation already exists. If the answer is negative, we could be in yet another legal quagmire. It is a grave matter when the scepter of personalized parties and big-man politics usurps the role of, and sells itself as, a broad citizen coalition. There is an ever diminishing reference to constitutional text, congressional approval and party procedure which redounds to an increased role for political leaders; claims of a people-centered revival notwithstanding. Eerily, the leader’s press conference is being treated as more constitutive than the people’s congress. Trust in an individual's proclamation can never substitute the institutional voice of the people themselves. Thus, calls for the citizen to be at the center will ring hollow unless the foundational documents of the CCC constrain its leaders and strengthen the role of institutional structure, constitutional conformity and democratic accountability. 

RIGHTS ENFORCEMENT AND THE FULL JUDGEMENT ON JUDICIAL TENURE

The High Court released the full judgement by Justices Zhou, Charewa and Mushore regarding judicial tenure in light of the 2nd Amendment to the Constitution. This post discusses its findings regarding term-limits and human rights violations.  

1. Term-limit and Age Limit Provisions 

The central part of the judgement rejects the distinction between age limits and term limits as advanced by the respondents: 

Their argument was that the retirement age stipulated does not limit the term of office of the judges. This argument means that judges of the Supreme Court and High Court have no term limit. That argument is not sustainable. Section 328(1) defines term-limit provision to mean "a provision of this Constitution which limits the length of time that a person may hold or occupy a public office". We therefore come to the conclusion that s 186 is a term limit provision and that it has the effect of extending the length of time that a person may hold the office of judge of the Constitutional Court and Supreme Court. 

This is the full extent of the court’s reasoning. There is no semantic or epistemic exploration of the constitutional provision, neither is there any rational connection of such exploration with the facts of the case. The bare text of the Constitution is used to declare that age limits are term limits. It would appear the Court presumed that any limit to a term of office qualifies as a term limit provision. This explains the Court's assertion that, because age limits and term limits both have to do with time, then varying retirement age is varying term limits. It highlights the pitfalls of generalized arguments which are not anchored in a semantic exploration of constitutional text. The fact that a retirement age limits incumbency does not make it a term limit provision; and neither does its general relation to time. Instead, the Constitution requires a term limit to be a limitation in length of time that a person may hold or occupy public office. The basis for a term limit provision is the length of, and not the general relation to, time holding public office. 

Whilst the Court insists that all judges have term limits, this is not the case. As noted by Victor Ferres Comella, term limits are reserved for the highest court because it has exclusive constitutional jurisdiction. The origins are in the Kelsenian model of Constitutional Courts, a point made in the Brian Opeskin paper I referred to in a previous post, which was also quoted by the Court. It is Constitutional Courts that have term limits, beyond which judges can serve in other courts until they reach their age limit. The High Court and Supreme Court do not have term limits. They do not have the special powers of the apex court and are thus not bound by a term-limit provision. This is what Opeskin refers to as a hybrid arrangement, which the Court quotes with approval to illustrate judicial design in Zimbabwe. Yet Opeskin states that hybrid models comprise age limits and term limits. He does not claim that age limits are term limits. By the judges’ reasoning, Zimbabwe would be a hybrid of term limits (by age) and term limits (by fixed term), a ludicrously superfluous tautology. The High Court erroneously conflated tenure arrangements with term-limit provisions, the absurdity of which is apparent in the following dictum of the Court: 

Life limits (when one dies), age limits (when one reaches a specified retirement age), and a fixed term Iimit (when a specified period of service is reached). These three tenure arrangements are contained in s 186 of the Constitution of Zimbabwe. 

That cannot be true. We do not have life tenure in Zimbabwe. The US remains one of the few countries which has life tenure. The Court’s insistence on conflating tenure with term limits leads to such absurdities. Consider the President, whose length in holding office is limited to two five-year terms. That is a term-limit provision, created due to the special powers of the president. This is true of the Prosecutor-General, Commanders of uniformed forces and all other term limited offices. This cannot be equated to the general retirement age of all members of the civil service. That age limit is not a restriction in length of time to hold office due to special powers in the civil service. Rather, it is a reaction to general advancement in age and attendant reduction in cognitive ability, mechanical efficiency and overall productivity. This distinction applies to our judicial design, with term limited constitutional judges on the one hand and age limited generalist judges on the other. 

2. Notwithstanding Clause 

The Court points to the notwithstanding clause in 186(4) as evidence that the amendment changes a term-limit provision. Section 186(4) of the Constitution states that the judges of the superior courts, including the Chief Justice and Deputy Chief Justice, will continue in their offices even if the Constitution does not permit incumbents to benefit from changes to a term-limit provision. According to appeal papers filed, this provision was inserted to make it clear that no changes had been made to a term-limit provision. It is possible that Parliament inserted this clause due to fear of violating the Constitution. However, this is irrelevant as it neither means that Parliament was correct nor that such interpretation is the most appropriate. A correct definition of term limits as distinct from age limits renders the the Constitution internally consistent. Treating all manner of tenure arrangements as term limit provisions has led to the quagmire in which current judges are excluded from operation of the amendment and the attendant needless claims of a constitutional crisis. 

3. South African Judgement 

The High Court judgement quotes from the South African case of Justice Alliance of South Africa v President of the Republic of South Africa and Others as evidence that age can, and does indeed define and can be used to extend a term of office,: 

lt follows that in exercising the power to extend the term of office of a Constitutional Judge,  Parliament may not single out the Chief Justice . . . Age is an indifferent criterion that may be applied in extending the term of office of a Constitutional Judge.

The Court makes the ruling that, since a term of office can be extended on the basis of age in South Africa, the same cannot be done in Zimbabwe due to section 328(7). This is a result of the Court's conflation of tenure with term limits. Nothing stops extension of a term of office based on age in Zimbabwe, just as nothing would stop such in South Africa. It is only term-limit provisions which may not be altered for the benefit of incumbents. Thus, the proper application of the dictum from South Africa would have been acknowledgement that age is an indifferent criterion, distinct from a fixed term, which can be used to extend incumbency. It must be noted that the South African case dealt with a provision which extended constitutional judges' tenure beyond the retirement age of 70 as long as they were within the term limit of 12 years or 15 years of active service. In other words, there is regional precedent for the content of the 2nd Amendment. 

4. Declaration of Rights 

The High Court ruled that the continued incumbency of the Chief Justice and extension of tenure for other judges would be in violation sections 56 (1) and section 69(3) of the Constitution. 

4.1 Section 56(1) of the Constitution 

Section 56(1) contains the right to equal protection and benefit of the law. The Court engages in a form of deductive reasoning to conclude that this right had been abrogated. It points to Mawarire vs Mugabe, in which it was held that failure to uphold a constitutional obligation violated section 18(1) of the former constitution. Section 18(1) provided the right to protection of the law. Section 56 (1), according to the Court, is wider than the old section 18 and for this reason, incumbency of a chief justice beyond his retirement age would be infringe the right to equal protection and benefit of the law. This interesting syllogism is actually misleading, as is evident from the Court’s dissonant dictum: 

Section 56(1) of the Constitution of Zimbabwe 2013 is wider in its scope than s 18 of the old Constitution. It qualifies the protection of the law with the word "equal"; it also adds the entitlement to "equal benefit" of the law which was not there in the old Constitution

One need not be a jurist to fully comprehend the effect of a qualifier. When a provision is qualified, its scope is not broadened, but diminished through restriction to a specific set of circumstances. Section 56 (1) of the Constitution is not wider than the old section 18. It is narrower because it is qualified. There is a general belief that the product of a more people-driven process cannot possibly be more restrictive than its predecessor, yet this is the case in some respects when it comes to the 2013 Constitution. Whilst the old section 18 was a general protection against illegality, section 56 (1) is a protection against discrimination or unfair differentiation. It is not longer a general protection against illegality but now guarantees sameness of treatment. Through the 2013 reform process, our constitutional order was shifted from the Lancaster House constitutions which are replete with provisions to secure protection of law (see the Constitutions of Zambia and Botswana).  Section 56(1) of the Constitution is identical to section 9(1) of the Constitution of South Africa and approximates to the equal protection clause in the 14th Amendment to the American Constitution. As both the Constitutional Court of South Africa and American Supreme Court have ruled, these provisions can only be activated in cases of discrimination or some other form of unfair differentiation. This is because they are equality clauses. None of this seems to have been considered by the Court, which concluded as follows: 

The applicants are entitled to protection and benefit of the law in the sense of having public office occupied in accordance with and not in violation of the provisions of the Constitution.

In essence, the court edited the Constitution by removing the word ‘equal’ to make a finding that it contains a general right to ‘protection and benefit of the law.’ There is no such right under the Constitution. There is only a right to ‘equal protection and benefit of the law.’ The Bill of Rights Handbook, which is referenced in the judgement, provides the test for activating section 9 in South Africa and thus section 56 in Zimbabwe. It is from the case of Harksen vs Lane NO and it begins with the seminal question of whether the law or conduct sought to be impugned differentiates individuals or groups of people. Without proof of unfair differentiation, there is no declaration which can be made under section 56. No part of the judgement refers to any form of differentiation or unequal treatment. In fact, the Court only makes a passing references to the fact that it is concerned with substantive rather than formal equality. It does not define the two terms neither does it show how the facts of the case relate to infringement of substantive equality. Whilst formal equality relates to all persons being equal bearers of rights, substantive equality is concerned with actual outcomes and the socioeconomic conditions which make equality a lived reality. Remarkably, the judgement finds a violation of the equality clause without indicating how incumbency of the Chief Justice would result in inequality, formal or substantive, in respect of any individual or group of persons. 

4.2 Section 69(3) of the Constitution

Section 69(3) of the Constitution contains the right to access courts, tribunals or other forums for dispute resolution. The judgement rules that the intended extension of judicial incumbency for current judges would undermine independence of the judiciary and the rule of law, more so since the extension is subject to executive approval: 

The intended extension … (has) the effect of compromising on the independence of the judiciary and the rule of law. Significantly, the election to continue in office … is subject to acceptance by the President…This has the effect of subjecting the term of office (or extension thereto) to the control of the Executive. 

On this basis, the Court rules that any extension of the judges’ terms would violate section 69(3) of the Constitution. There are two points to note. Firstly, the judgement impugns an amendment whose validity was not in question. The Court is not attacking conduct but the actual content of the amendment and thus the Constitution itself. It finds that the process of extending tenure as provided in the Constitution is contrary to the Declaration of Rights. This is a truly remarkable finding as it is contrary to constitutional canon. The Constitution can never be understood to be internally contradictory. It is a consistent, coherent document whose provisions all inhere with constitutional supremacy. As the Constitutional Court stated in Madzimure and Others vs Senate President and Others CCZ8/19; 

The ancillary question is whether an act done in terms of the provisions of the Constitution can violate a person’s rights in terms of the same Constitution. The question is answered in the negative. An act lawfully done in terms of the Constitution cannot violate a person’s rights under the same Constitution.

Thus, the remarks that section 69(3) would be violated because the constitutional process of extending tenure might be viewed as undermining judicial independence are not sustainable as the Constitution cannot be violative of itself.  

Secondly and more importantly, section 69(3) of the Constitution makes no mention of independence of the judiciary or the rule of law. It deals only with access to a court, tribunal or other such forum. The constitution of that forum is not dealt with in that sub-section. The right to an independent and impartial court is contained in section 69 (1) and (2). Subsection 3 is only relevant to access. There is nothing in the judgement which indicates how access to a court has, or is likely to be, restricted. Typical examples of restrictions to accessing a court include ouster of the jurisdiction of a court, abolishing causes of action and even punitive costs against litigants. Nothing of this sort is explored in the judgement. Instead, there is a discussion of independence of the judiciary, which is itself germane to subsections (1) and (2) of section 69 of the Constitution. This distinction is important because the right to an independent and impartial court is not a generalized right under the Constitution. It becomes active only when one is accused of an offence or is in the course of determining civil rights and obligations. It is coterminous with live litigation and is not related to a hypothetical case or abstract notion of independence. The High Court judgement makes no reference to the live litigation which warrants activating provisions relating to independence of the judiciary. In any event, such independence is dealt with in provisions which were not cited at all. The judgement only states that section 69(3) would be violated due to the earlier finding that sitting judges cannot benefit from the constitutional amendment. There is nothing in the judgement to indicate how this benefit to sitting judges would result in restricted access to any court, tribunal or any other forum. There seems to have been a presumption that impugning the composition of a court is synonymous with a claim of restricted access. This falls short of the requirements under section 69(3) of the Constitution. 

5. Conclusion  

There are many disagreeable parts of this judgement. It conflates tenure arrangements with term limit provisions, treats the new section 56(1) as if it were the old 18 (1) and presumes access to courts is restricted by perceived challenges to judicial independence. Generalized and superficial arguments are advanced without sufficient anchor in, and particularized reference to, the Constitution. It shows the limits of generalist approaches to the specialized process of constitutional adjudication. This is true even though the judgement's author does not self-identify as a generalist, having indicated during public interviews that constitutional law is his area of interest and specialized training. Establishing a stand-alone Constitutional Court is meant, in part, to ensure that constitutional adjudication is not subject to such pitfalls and remains unified by having one expositor of constitutional meaning.  

JUDICIAL TENURE IN LIGHT OF THE LATEST HIGH COURT RULING

On 15 May 2021, the High Court declared that the retirement age of judges amounts to a term-limit provision whose amendment cannot benefit current judicial incumbents. As a consequence, the Court ruled that Chief Justice Luke Malaba’s tenure ceased when he attained the retirement age of 70 (his election to serve a further five years notwithstanding). This post considers this judgement in light of the Constitution and its bearing on judicial design in Zimbabwe. 

1. Effect of Section 328(7) of the Constitution 

Section 328(7) of the Constitution prevents extension of tenure for sitting public officers through amendment of a term-limit provision. The provision states that; 

Notwithstanding any other provision of this section, an amendment to a term-limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.

There are two crucial points to note about this provision. The first is that the Constitution permits amendments to term-limit provisions. What is prohibited is extending sitting public officers’ tenure in terms of such amendments. The second point is that sitting public officers can have tenure extended via constitutional amendment as long as the amendment does not affect a term-limit provision. It is not the fact of extended tenure which the Constitution prohibits, but doing so through alterations to a term-limit provision for the benefit of incumbents. This makes the definition of a term-limit provision crucially important for understanding the content and effect of the 2nd Amendment. 

2. What is a term-limit provision?

Section 328(1) of the Constitution states that; 

"term-limit provision" means a provision of this Constitution which limits the length of time that a person may hold or occupy a public office.

In other words, a term-limit provision circumscribes the length of time for which public office may be held or occupied.  The provision is in two dimensions. The first dimension is a limitation in length of time. It is not a general, non-specific effluxion of time. Rather, it is a periodized interval which is precise to denote the length of time for which incumbency is permitted. This length of time must be apparent from the provision. For this reason, when two or more persons are appointed to a term-limited office, the length of time they can occupy or hold that office is fixed and uniform no matter their age or date of appointment/election. For instance, the Constitution limits constitutional judges to 15 years, the Prosecutor General to 12 years and the President to 10 years. There be no doubt that these are term-limit provisions. The second dimension to a term-limit provision is that the limitation in length of time must relate to holding or occupying a public office. It does not relate to time which is unconnected to the holding or occupying of that office. Both dimensions are essential elements to activate the section 328 provisions. That is to say, it is only when a provision limits the length of time for which a person can hold or occupy a public office that it qualifies as a term-limit provision under the Constitution. 

3. Effect of 2nd Amendment to the Constitution 

The next inquiry is whether the 2nd Amendment to the Constitution, in allowing judges the option to sit for five years beyond the retirement age of 70, amended a term-limit provision. It is only if the retirement age of 70 qualifies as a term-limit provision that its amendment cannot benefit sitting judges. It is abundantly clear that a retirement age does not limit incumbency based on the length of time holding or occupying a public office. Instead, it limits incumbency based on linear progression of time since birth. It does not provide a fixed length of time for which a person may hold public office, but only a fixed age at which they must retire. Thus, what is fixed is the age at which tenure ends, not the length of time which one may hold or occupy public office. It relates to the totality of time accumulated since birth, whether spent holding public office or not. It is the mere fact of holding public office upon attaining the retirement age, rather than the length of time holding it, which leads to extinction of tenure. As such, persons appointed to the same office will retire at a uniform age, but potentially serve for different lengths in time. The fixed age of retirement is thus distinct from the fixed term of a term-limit provision. The absence of a limitation in length of time holding or occupying public office makes it clear that retirement age is beyond the scope of the Constitution’s definition of a term-limit provision. 

4. High Court Ruling and Judicial Tenure

The High Court treated both age and term limits as term-limit provisions. According to the summary judgement, the key consideration was …whether section 186 has the effect of extending the length of time that second Respondent and the other Judges of the Constitutional Court and Supreme Court may all occupy office. We come to the conclusion that this section has that effect. 

With respect, the key consideration was not whether tenure had been extended, but whether it was done by altering a term limit provision. The Court then indicates that retirement age is a term limit provision, suggesting that the Court interpreted a term-limit provision to mean any general limitation in time and not the precise length of time one is permitted to hold or occupy public office as stipulated by the Constitution. 

It must be noted that a term limit is not the only way that judicial tenure is limited. Thus, it cannot be used as an umbrella term which subsumes other methods of limiting tenure. According to legal governance professor Brian Opeskin, there are three models of limiting judicial tenure in the world: life limits, age limits and term limits. Life limits grant judges tenure for life, as is the case with federal judges in the USA. Age limits are the ageist conception of tenure which mark a fixed age for retirement and are found in most common law systems. Term limits are the age-neutral model which limit the time holding or occupying judicial office and were introduced by civil law jurisdictions which concentrated power in a specialized Constitutional Court, beginning in Austria. As such, tenure can be for life, for a fixed term or up to a fixed age. Conversely, it is ended by death, the extinction of a term or attainment of the retirement age. There is no theoretical basis for treating retirement age as a term limit. In fact, the Constitution treats the two separately, with attainment of the retirement age meaning a judge leaves or elects to sit further, whilst extinction of the term means a judge has to leave the court, with the option of being appointed to a lower court. This is similar to South Africa, where constitutional judges can serve beyond the retirement age of 70 if they are yet to serve for 15 years. The irresistible conclusion is that an age limit is not a term limit, but another method of limiting tenure. 

This is when I often receive feedback regarding sovereignty as a shield from  comparative constitutional law. The Constitution of Zimbabwe requires courts to consider foreign law and incorporate international law in the interpretive process. The Constitution locates itself within a web of regional and international constitutional developments, cognisant that a body of constitutional jurisprudence is still taking root since the constitution's recent enactment.  Whilst courts have all the power to disregard foreign law, they must consider it and these considerations are vital to any interpretations of the supreme law. 

5. So the 2nd Amendment does not change a term-limit provision? 

It actually does – just not in respect of the age limit provisions for reasons outlined above. The 2nd Amendment, through the new section 186(1), removes the Chief Justice and Deputy Chief Justice from the ambit of constitutional judges who are appointed for one non-renewable 15-year term. All other constitutional judges remain term limited. The Chief Justice and Deputy Chief Justice will only be subject to the retirement age. This is quite clearly a change to a term limit provision. This is probably motivated by the realization that it would not be desirable to re-appoint the two most senior judges to the High Court or Supreme Court, as is the case for the other constitutional judges. The most senior judges already have a distinctive manner of appointment in Zimbabwe and in other parts of the world. The South African Constitutional Court has said this is due to their extra-judicial administrative and ceremonial duties, which include liaising with and interacting with the executive and the legislature on behalf of the judiciary.

This extended tenure of the most senior judges means it is possible for a president to appoint a young Chief Justice and Deputy Chief Justice whose tenure spans across many presidential cycles. President George W. Bush used this strategy to great effect when he appointed then 50 year-old John Roberts to be the US Chief Justice in 2005. In South Africa, the exemption of the Chief Justice from term limits was a statutory change which was subject to presidential discretion and was thus ruled unconstitutional.  

6. So does this mean the 2nd Amendment needed a referendum and the High Court was correct?

As highlighted before, changes to term limit provisions are permitted as long as they do not benefit incumbents. This means the Chief Justice and Deputy Chief Justice are still term limited, but their successors will only be age limited. If the government sought to remove term limits for the current Chief Justice and Deputy Justice, they would have needed to amend section 328(7), which process requires a referendum. Currently, the Chief Justice and Deputy Chief Justice were meant to benefit from changes to their age limits, not their term limits. That does not require a change to section 328 (7) and thus dispenses of the need for a referendum. For completeness, the provisions in the new 186(4) for incumbent judges to benefit from the changes in the amendment can only be in respect of the changes to age limits. The term limit changes cannot apply to them without the necessary amendments to 328(7). This probably explains the government's insistence that the amendments relate to age limits rather than term limits. 

7. But isn’t the mischief that Constitution sought to remedy that officers extend their tenure through constitutional amendment? 

The Constitution limits its prohibition to officers who extend their tenure by amending a term-limit provision. The framers of the Constitution could have omitted reference to a term-limit provision, thus prohibiting all manner of extension of tenure by constitutional amendment. Since they did not do so, the clear wording of the Constitution means it is only when a term-limit provision is changed that sitting officers cannot benefit. 

8. Is this a Malaba amendment? 

This is the most common gravamen against the 2nd Amendment, the charge that the government drafted an amendment in anticipation of Chief Justice Malaba’s retirement to extend his tenure and secure their interests. It is the result of successful political advocacy which associated the person of the Chief Justice with the outcome of the 2018 presidential election petition. Notwithstanding that the petition was dismissed unanimously, bitterness with the electoral outcome has led to hostility against Chief Justice who has been projected as the entire object of the 2nd Amendment. This is also linked to the high visibility resulting from granting televised broadcast of the presidential petition. 

The reality is that the 2nd Amendment would have passed over a year ago were it not for the national lockdown occasioned by the Covid-19 pandemic. The timing of the amendment’s passage is thus a consequence of circumstance. Moreover, the amendment extends the option to work beyond the retirement age of 70 to all judges of the Supreme Court and Constitutional Court; with high court judges presumably expected to work towards promotion to the superior courts where they can exercise the same option. As highlighted before, judges are generally promoted based on seniority, with the head of the judiciary likely to be its oldest member. It stands to reason that the Chief Justice would be the first to benefit, but that does not mean he is the only one to do so. His extension of tenure is neither unique nor exclusive. 

It must also be noted that jurisdictions have often grappled with the problem of retaining judges beyond mandatory retirement ages. Prominent examples are provided by Professor Opeskin from Australia and South Africa. The South African retirement age is 70, but their Constitution was amended to allow parliament to extend the tenure of constitutional judges. Thus, constitutional judges in South African can serve up to the age of 75 if they have not served for 15 years. In South Africa, the law actually singled out the Chief Justice as eligible for extension of tenure beyond the term limit of 15 years up to the age of 75. This was the provision used by President Zuma to extend the tenure of Chief Justice S.Sandile Ngcobo before the Constitutional Court struck down the provision. This is distinct from the Zimbabwean scenario, where the removal of a term limit cannot apply to Chief Justice Malaba who can only opt to work until the 75 year limit like all other superior court judges. 

9. Is the Appeal in the wrong forum? 

This will only be clear after having sight of the full judgement and the order concerned. Orders of constitutional invalidity must be confirmed by the Constitutional Court before they have any force or effect. Orders of validity, it has been ruled, must also be appealed to the Constitutional Court. Lawyers who argued this case insist that there was no order of constitutional invalidity, but rather a declaration of the applicable law. In other words, they insist that there is no need for Constitutional Court confirmation. If the lawyers who argued this matter are correct and there was no order of constitutional invalidity or validity, then there is likely no basis for arguing that the appeal is in the wrong forum since it is only in those specified matters that the appeal must be made directly to the Constitutional Court.   

10. What is the fate of the Deputy Chief Justice and the other judges of superior courts 

This is yet another matter which will be elucidated by the full judgement. By the summary judgment rendered, the Deputy Chief Justice, if she attains the age of 70 in that position, would likely face the same fate as the Chief Justice and cease to hold office on that date without the option for electing to sit for five more years.  Regarding the other judges, there has been reference to a distinction between acting judges who can benefit from the amendment and sitting judges who cannot. This is not all that clear, given that section 328(7) not only precludes officers who have served in an office from benefitting from an amendment, but also those who held an equivalent office. By that logic, it could mean the vast majority of superior court judges, even those who were in an acting capacity, would be precluded from extended tenure unless the High Court judgement is overturned on appeal. 

TERM LIMITS, RETIREMENT AGE AND THE PRACTICE OF CONSTITUTIONAL COURTS

This post contributes to the debate over the constitutionality of the 2nd Amendment to the Constitution. The dominant view posits that the 2nd Amendment altered a term-limit provision and thus cannot benefit any sitting judge. This post shows why this view cannot be sustained. 

The 2013 Constitution introduced a new, stand-alone Constitutional Court and with it, a distinction between judges in general and constitutional judges. Whilst all judges continue to serve until the retirement age of 70, section 186(1) of the Constitution states that judges serving on the Constitutional Court can only serve for one non-renewable term of up to fifteen years. In other words, the role of constitutional judge is term-limited. This special restriction on constitutional judges is borrowed from continental Europe where it is an integral part of Constitutional Courts including those in Germany (limited to twelve years), France (limited to nine years) and Italy (limited to nine years). 

Victor Ferres Comella explains that the non-renewable nature of the term is meant to ensure judges do not write opinions amenable to securing another term. This is by no means universal, as the term is renewable in other countries including Spain. He notes that the fixed term is exclusive to constitutional judges due to the binding nature and finality of decisions from the apex court. Judgements from lower courts are subject to appeal whilst those from the Supreme Court can be altered by ordinary legislation. On the other hand, Constitutional Court judgements cannot be  appealed and altering them requires the more onerous task of amending the Constitution itself. This heightened power is what justifies limiting the length of time for which one sits as a constitutional judge. Just as the term-limited presidency is in response to executive power, sitting on the highest court is term-limited to control the highest form of judicial power.  

Any change to this fixed term cannot benefit any incumbent. Yet the 2nd Amendment to the Constitution does not change any term-limit provision. In fact, it does not change the retirement age either, which remains 70 years. The amendment gives judges of the Constitutional Court and Supreme Court the option to serve for five years beyond the retirement age, subject to acceptance of their mental and physical capacity to do so. In other words, the amendment affects judges with and without a term-limit provision. It is less to do with term limits and more about the ability to work beyond the retirement age for a period of five years.

This ability to work beyond the retirement age of 70 is accepted in the region. In South Africa, constitutional judges serve a non-renewable term of twelve years and retire at the age of 70. However, the Judges Remuneration and Conditions of Employment Act provides that judges who have not served on the Constitutional Court for fifteen years by the retirement age of 70 may continue to serve until they reach the fifteen year limit or attain the age of 75, whichever comes first. The changes in the 2nd amendment are congruent with this practice. 

Section 328 of the Constitution states that changes to a term-limit provision cannot benefit any incumbent. Certain people argue that the retirement age is a term-limit provision. They predicate this on the Constitution’s definition of such provision as one which limits the length of time to hold public office. However, the Constitution has clear provisions for roles limited by length of time. The presidency is limited to a length of ten years whilst the constitutional judge is limited to a period not exceeding fifteen years. Parliamentarians are limited to a renewable length of five years and permanent secretaries are limited to a length of ten years.  Commanders of the uniformed forces are limited to a length of ten years whilst the Prosecutor General is limited to a length of twelve years. Members of the Zimbabwe Electoral Commission are limited to twelve years whilst all other commissioners are limited to ten years. This is not about retirement, but the a limitation in length of incumbency. Retirement is not a limitation in length of time but attainment of age. It is not concerned with length of time in incumbency. This explains why, after expiry of the fifteen years, former constitutional judges are free to be appointed to lower courts. Whilst the term expires after fifteen years, retirement occurs at the age of 70. Retirement is not necessarily coterminous with extinction of the fixed term. Section 328(7) is thus inapplicable in the circumstances. 

The Constitution is replete with minimum and maximum ages for various posts – that is not the same as creating a fixed length of time, beyond which incumbency cannot be held. Just as changing the minimum age to run for president would not be a change to presidential term limits, offering judges to work beyond the age of 70 is not the same as changing the term-limit of constitutional judges. Term-limits are only germane to constitutional judges, a practice originating in continental Europe and coterminous with establishment of a stand-alone Constitutional Court. Expanding that to mean all manner of judges, and thus members of the civil service, are term-limited by the mere existence of a retirement age goes beyond the scope, meaning and purpose of the Constitution's provisions on term-limited incumbency. 

THE PROSECUTORIAL DILEMMA

Photo Credit: Justin Mutenda

The government of Zimbabwe recently announced its intention to ring fence members of the National Prosecuting Authority (NPA) in prosecutorial villages to ostensibly offer protection and curb corruption. Public prosecutors are under intense scrutiny due to claims of compromise and corruption. There are currently two public prosecutors in detention and another yet to be apprehended in connection with bail decisions in armed robbery cases. The constant claims of corruption and subversion of prosecutorial guidelines all evince systemic problems rooted in the 2013 Constitution. 

During the 2013 constitutional reform process, members of the MDC-T were keen to reform the office of Attorney General. As the officer responsible for public prosecutions, the Attorney General was an indispensable cog in the government’s persecution of opposition members. Not only were requests for prosecution of ZANU PF activists ignored, but the then Attorney General, Johannes Tomana, issued a directive for bail to be opposed in all political cases. This was, effectively, an order against members of the MDC-T. Prosecutors were also to appeal against any successful bail applications, which resulted in the suspension of bail orders. In this way, the right to bail was manipulated to ensure political opponents were detained without trial.

 

To remedy this malfeasance, the makers of the 2013 Constitution removed the prosecutorial authority from the office of Attorney General. The Prosecutor-General was established as an independent officer whose appointment and removal is similar to that of a judge. Whilst the Attorney General is appointed solely by the president, the Prosecutor-General is appointed after a public interview process and enjoys constitutional independence. Independence in prosecutorial decision-making is essential for the proper administration of justice. It shields the general public from excessive, unlawful and unconstitutional law enforcement whilst increasing the institutional checks on restrictions of liberty. This ensures that the police are the only body lacking institutional independence in the criminal justice value chain. Consequently, accused persons are assured that the decision to prosecute is made impartially and rationally.  This is consistent with prosecutors' supervisory role as provided in the United Nations Guidelines on the Role of Prosecutors. 

However, the independence granted to the Prosecutor-General is not diffuse. It does not extend to every member of the NPA. It is akin to granting judicial independence exclusively to the Chief Justice. Independence which is only secured for the apex official does little in protecting the general public from corruption, excessive policing or political interference. It facilitates elite cohesion through executive capture since a president need only appoint a pliant Prosecutor-General to secure the conformity of all NPA personnel. Independence centralized in the top officer is also amenable to corruption since it is only one officer, with name recognition, who would be the subject of bribery in all prosecutions. Diffuse independence would encumber such efforts and enable prosecutors to operate as shields against excessive law enforcement without fear of arrest for corruption or criminal abuse of office.  The overwhelming power granted to the Prosecutor-General probably explains the high turnover of incumbents, with three different officers (Johannes Tomana, Ray Goba, Kumbirai Hodzi) since the enactment of the Constitution in 2013. 

Restricting independence to the apex office has several other deleterious outcomes. It makes members of the NPA obedient servants of the Prosecutor-General as a consequence of constitutionally ordained docility. Obedience to instructions becomes the preferred trait via a militaristic approach which accounts for the proliferation of uniformed personnel in the office of public prosecutor (a practice only halted by a Constitutional Court ruling). This also restricts prospects for career advancement. Prosecution is an honoured and respected job in many established democracies. In the USA, it is so venerated that current Vice President, Kamala Harris, built her political career on her prosecutorial experience, under the moniker of the progressive prosecutor. Thus, prosecutorial choices not only reflect professional competence but ideological commitment to rule of law fundamentals. Zimbabwean prosecutors cannot make such choices. They are obligated to follow instructions, even when such instructions are in clear defiance of legal precepts. This stunts their professional development and career prospects since all key decisions are attributable to their principal. 

It is noteworthy that the Prosecutor-General does not have to appear in court to defend the decisions he requires his officers to make. It is individual members of the NPA who put their faces to high profile cases and suffer the personal, professional and reputational costs for decisions made by their superiors. In the very least, an officer must only defend a decision which they participated in reaching, more so when the decision has implications on fundamental freedoms. Some critics have openly questioned the professional competence of public prosecutors and harangued officers in the invidious position of following instructions which lack sufficient grounding in law. Further, this constitutional scheme grants the Prosecutor General plausible deniability. Even though members of the NPA are required to follow his instructions, none of these instructions are ever in writing.  A claim of refusal to follow instructions can always be made after the fact, without proof, leaving prosecutors vulnerable to arrest and detention no matter their conformity with superior orders. This vulnerability induces real fear and explains prosecutors’ refusal to be involved in such cases as the one against a member arrested for consenting to the release of Ignatius Chombo’s passport. 

According to the case of Moll vs Commissioner of Police, an arrest that is based solely on superior orders is unlawful. Courts have stated that the arresting officer has to be personally satisfied regarding the existence of reasonable suspicion for the commission of an offence. This standard should be applied to the NPA. It makes little sense that police officers are legally obligated to apply their minds before restricting liberty yet legal practitioners for the State are made to blindly follow superior orders. Since judicial officers independently apply their minds, and the arresting detail is required to do the same, prosecutors must act on individual opinions regarding the validity of prosecutions. The public safety implications of armed robbery cases justify the commonly held view that bail must be opposed in such matters. However, we must ascertain whether prosecutors have the latitude to make such decisions before we demand that they are held accountable.  

The decision to arrest a prosecutor, like that to detain a judge, is a grave infraction which must only be resorted to in exceptional circumstances. The frequency of such arrests is deplorable and requires that, in the very least, the decision to prosecute is attributable to the prosecutor concerned through the grant of individual independence. Prosecutors face the public and professional costs consequent to the decision to prosecute and since there cannot be taxation without representation, there can neither be accountability without responsibility. It is apparent that the constitutional separation of the Prosecutor-General from the Attorney General has not resulted in greater independence or impartiality in the decision to prosecute. It has consolidated power in an independent office which can issue directives akin to those delivered by Johannes Tomana. Consequently, the grant of bail continues to be used as a tool of repression, with individual prosecutors hung out to dry via a constitutional scheme which will not be remedied by their arrest, detention or accommodation in the vaunted prosecutorial villages.