HomeOpinion & AnalysisHow constitutional crisis could have been avoided

How constitutional crisis could have been avoided

BY ALEX MAGAISA

The government of Zimbabwe is the author of the current constitutional crisis where it is unclear how the dispute over Constitutional Amendment No. 2 can be properly and lawfully resolved. It could easily have been avoided if the government had respected and followed the constitution. There was no shortage of advice, but the government chose arrogance. But instead of getting out of the hole, the government continues to dig.

What is the nature of the dispute?

The primary dispute revolves around the increase in the retirement age of judges. Before Amendment No. 2, the mandatory retirement age was 70 years. There was no room for extension. Amendment No. 2 changes this in respect of judges of the Supreme Court and the Constitutional Court. When they reach 70, they can elect to stay on for 5 more years until the age of 75. The retirement age for High Court judges remained at 70.

The applicants have argued that this extension of the retirement age is unconstitutional. This argument is not based on the merits or demerits of judges serving for a longer period. That issue is irrelevant. Rather, it is anchored on the argument that it is unprocedural. In other words, it is that the amendment does not comply with the special procedure of amending such a provision. But why is it unprocedural?

The argument is that the change in the provision of the retirement age is a change to a term-limit provision and that being the case, it cannot benefit current officeholders. This is prohibited by section 328(7) of the Constitution which states that,

“… 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.”

Note that the problem with Amendment No. 2 is not necessarily that it changes the judges’ retirement age, no. This would be lawful but only if it applied to future officeholders, not current ones. The problem Amendment No. 2 seeks to benefit current judges of the Constitutional Court and the Supreme Court.

The government should have changed section 328(7) of the constitution to say an amendment to a term-limit provision can benefit current or past officeholders. However, to do that, it is not enough to have a two thirds majority in parliament. The effect of section 328(9) of the constitution is that there must be a referendum. Therefore, effectively, a change to a term-limit provision which extends that term requires a referendum.

But is a provision concerning the retirement age of judges also a term-limit provision?

The government’s view all along is that the provision for the mandatory retirement age of judges is an age-limit provision and is different from a term-limit provision. In other words, there are two types of provisions: age-limit provisions and term-limit provisions. Based on this, it argues that section 328(7) of the constitution does not apply to the extension of judges’ retirement age, because it only applies to term-limit provisions. This reasoning is deeply flawed. The distinction being drawn between age-limit and term-limit is based on a misreading of the provisions and also offends the spirit of the prohibition in section 328(7).

The government’s favoured view is that the only term-limit provision regarding judges is in section 186(1) which states, in part, that “Judges of the Constitutional Court are appointed for a non-renewable term of not more than fifteen years …”. They, therefore, conclude that the term-limit provision for judges of the Constitutional Court is 15 years and that since this is not being changed by Amendment No. 2 to benefit current judges, there is no need for a referendum. This is deeply flawed and based on a selective and misleading reading of the provision. The more complete version of the provision reads as follows:

“186(1) Judges of the Constitutional Court can be appointed for a non-renewable term of not more than fifteen years, but – (a) they must retire earlier if they reach the age of seventy years”

The meaning of this is clearly that the 15-year term of a judge of the Constitutional Court is subject to age-limit. If Judge X reaches 70 years when he has served just 10 years at the Constitutional Court, that is the end of his term. He cannot say my term is 15 years, therefore I must remain in office. The constitution, therefore, uses age as a primary determinant of the length of a judicial term. In short, the distinction being drawn between a term-limit provision and an age-limit provision is fallacious because the age-limit is a factor that determines the length of the judicial term. I suspect a mathematical mind can explain this more vividly and with far less words!

The fundamental point here is that the attempt to distinguish a term and age limit is disingenuous and has no basis in the constitution.

Constitutional definition

But even if the distinction between age-limit and term-limit has no basis in the constitution, there is another good reason why the view favoured by the government has no merit. It is that they have tried to construe a term-limit provision as if it only has a dictionary meaning. On that reasoning, they comb through the constitution looking for provisions where a “term” is mentioned. On that basis, they try to exclude any part which does not specifically mention the word “term”. It is on this basis that they say section 186(1) refers to a term-limit for a judge and that retirement age is not a term. But I have already debunked this myth by demonstrating that even this term-limit is determined by age, so there is no difference.

However, the most important issue is that a “term-limit provision” is defined by the constitution. When legislation contains a definition for a word, it is because parliament wanted it to have that meaning, regardless of whatever other meaning it might have in other contexts. The basic rule is that you apply the definition provided in the legislation. Likewise, in this case, the applicable definition of a term-limit provision is not what people imagine or find in a dictionary, but what the constitution says. The framers of the constitution were very careful to define the meaning of a term limit provision. It is only this definition that matters. Let us see how it is defined.

Section 328 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”. Does a maximum retirement age limit the length of time that a person may hold or occupy office? The answer to this is it does. A judge can only hold office until he or she is 70. Anything beyond that would be lengthening their time in office. The argument becomes more complete when this definition is read together with section 328(7) which shows the meaning of changing a term-limit provision. It states as follows:

“… 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.”

We have already seen what a term-limit provision is in the definition. What section 328(7) does is show what an amendment to a term-limit provision looks like. It defines such an amendment as one whose effect “is to extend the length of time that a person may hold or occupy office …”. Now, it is plain that an amendment that raises the retirement age has the effect of extending the length of time that a person may hold or occupy office.

This is what Amendment No. 2 has done. It has extended the length of time that a judge of the Supreme Court or Constitutional Court may hold or occupy office.

There can be no doubt that it qualifies as a change to a term-limit provision regulated by the strict terms of section 328. That being the case, it should have gone to a referendum since it is designed to benefit incumbent judges.

  •  This is an abridged version of Alex Magaisa’s Big Saturday Read

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