BY SHARON HOFISI
Democracy and constitutional change show that constitutional change takes place normally through judicial interpretation of amendment formulas. Such interpretation must be done using the checks and limits on democratic participation as well as vaunted truths or elite-favouring values in the Constitution. Judicial independence is one critical facet of a formal constitution’s institutional paraphernalia that nurtures or dulls democracy.
The recent judgment by three High Court judges in Kika v Minister of Justice and 19 Others HC2128/21 (‘Kika case’) provides useful insights on judicial independence in Zimbabwe and beyond. The judgment was in respect of two matters that were consolidated because they dealt with the same substance and complaint, albeit one on a court application and the other on chamber application.
The consolidation of the two matters is important in case management and expedition of judicial proceedings in matters that bear significantly on constitutional interpretation and judicial independence. There are many facets of judicial independence. These include that judges must make decisions independently on the merits, without outside interference, fear or favour.
The need to curb external or internal interference is both enmeshed in the rule of law and other facets of constitutional democracy such as separation of powers, functions or parties. This effectively means that interference can come from pillars of the state that disregard the rule of law and practice rule by force or law. The separation of powers or functions doctrine examines the trias politica or three pillars of state: executive, judiciary and legislature. Interference with the independence of the judiciary may come either from the executive or legislature.
The interference can also come from members of the general public, the media, academia or the electorate. The electorate may be inclined to the view that judges aren’t elected but appointed by the executive. But since the appointment is made pursuant to the grundnorm or the Constitution, the judicial independence becomes embossed under the twin concepts of the rule of law and constitutional supremacy. For Zimbabwe, rule of law, separation of powers and constitutional supremacy are fundamental or founding tenets of constitutional democracy that are enshrined in section 3 of the Constitution of Zimbabwe, 2013.
The Constitution has a supremacy clause in section 2 which also speaks to the need for all laws, conduct, customs and traditions to be consistent with the Constitution failure which they’re null and void to the extent of their inconsistency. States that commit to constitutional or any form of democracy should fervently believe in democracy. Commitment to respecting the independence of judges is also demonstrated by the need to curb appointments of judges that are aimed at packing superior courts such as High Court, Supreme Court, and Constitutional Court.
The selection or promotion of any judge should be merit based so that a polity has its laws interpreted by a merit-selected judiciary. Whether we may end up having judges who adopt conservative, liberal, doctrinaire, political, activist, or other approaches to ruling is neither here nor there. Judicial independence must ultimately build public trust and confidence in the judiciary. This must lead to institutional trust and confidence on the state, state institutions and their agencies.
For Zimbabwe, section 44 of the Constitution obligates state institutions, including the three branches of the State, to respect various constitutional rights protected in Chapter 4 of the Constitution. Section 46 of the Constitution enjoins the state and non-state actors to interpret the Constitution’s Bill of Rights in a manner that gives full effect to the Bill of Rights; promotes constitutional values especially those in section 3; takes into account international law; embosses the spirit of the national objectives; and in a way that pays due regard to the national objectives. The same requirements are needed when courts are interpreting constitutional amendments Acts in a manner that is contemplated by section 328 (9) of the Constitution.
When interpreting the Constitution or any law, the independence of judges must be guaranteed by the state as enshrined in the Constitution or the law of the country. The UNOHCHR’s basic principles on the independence of the judiciary endorsed by General Assembly Resolutions 40/32 and 40/146 of 1985 provide the normative content on what amounts to judicial independence and how this can be affirmed. Of course there are many other normative frameworks at various regional or institutional arrangements. From the OHCHR, it is the duty of all governmental and other institutions to respect and observe the independence of the judiciary. This is the context in which the executive’s affirmation of the decision in the Kika case should be processed.
The other facet is that the judiciary must decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. It is in this context that the affidavits of the applicants and respondents that were filed have to be examined. Specifically, there is need to demonstrate that the issue of tenure and extension of a judge’s renewable continuance in office on the basis of age and fitness but after expiry of his or her tenure were not properly canvassed in the respondents’ affidavit.
Government’s position on the appeal must also be done in the manner that does not violate the principles of judicial independence reflected in this second pillar. This is also the same pillar that should be used to assess whether proper facts were placed before the judges to warrant the recusal or otherwise of Justice Zhou. Recusal must not be done in a manner that casts aspersions on the principles of judicial conduct such as independence, impartiality, integrity, propriety, competence, diligence and equality. It usually occurs when there is conflict of interest or close association with the parties to the litigation. Close or prior engagement with any of the parties is normally considered where a judge previously represented one of the parties in a case with the same subject matter. Where such averments aren’t made, a recusal unnecessarily leads to delay in the finality of the case. It is incumbent upon the parties to the litigation to advise the general public on reasons why a judge may refuse to recuse himself. Since there are no written rules on the recusal of judges from constitutional cases, it is usually left to the discretion of the individual judge.
This is why the issue of Justice Zhou’s participation of the interviews for Constitutional Court judges was considered as an issue that did not arise in Kika case since the Kika case dealt with the introduction of a new regime for the appointment of seating judges to the Constitutional Court and Supreme Court.
The discretion by the High Court judges was also exercised on the fact that the reasons for their recusal that were raised, that is, relating to institutional disadvantage that the ages of High Court judges was not raised to 75 and that the judges were constituted by the Judge President who was a commissioner of the Judicial Service Commission did not find favour with the judges.
This was because allocation of matters to judges is an administrative function and does not bear on judicial bias. The reasons for non-recusal can also be disclosed in a court order or may not be included, making it the duty of the lawyers to note the reasons and convey the same to their clients. It is noted here that parties must not raise apprehensions about possible conflicts of interest and then make them sound like conflicts of interests. The judge must also in his ruling distinguish apprehensions or bald averments from conflict of interests, all in the interests of judicial transparency, responsiveness, accountability, and justice contemplated in section 3 (2) (g) of the Constitution. It is within this context that the High Court judges indicated that the full judgment will have the reasons for dismissing the application for their recusal.
Thirdly, the judiciary must have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law. This explains why the High Court judges accepted the Kika case for judicial review and made the determination that is now subject for review.
Fourthly, there shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision except in instances such as judicial review, mitigation and commutation of sentences. This is the pillar that helps in understanding why the government feels the interpretation by the court was improper and then mounted its appeal.
It is also the reason why the decision of the court has led to the appointment of the Acting Chief Justice on the basis that the appeal against a declaratory order does not suspend the operation of that order.
Five, tribunals or courts should use established legal procedures that clothe them with jurisdiction in specific matters. The sixth requirement obligates judges to ensure the proceedings before them are conducted fairly and in ways that respect the rights and interests of the parties. It is from the above analysis that the Kika case becomes critical in showing the importance of judicial independence to the interpretation of amendments to the Constitution.
Hofisi is a transformative transitional justice practitioner, normative influencer and disruptive thinker