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.