D.Tinashe Hofisi: Reflections

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...

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-l imit 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 ...

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)....