Legal experts are against proposals to increase the retirement age of Supreme and Constitutional Court judges to 75 years from the mandatory 70 years, as proposed in the Constitutional Amendment (No.2) Bill.
Currently, Section 186 of the Constitution (Tenure of office for Judges) states the mandatory retirement age for judges is 70 years where judges of the Constitutional Court are appointed for a non-renewable term of not more than fifteen years.
Under the proposed amendments, government proposes that Supreme and Constitutional judges can elect to “continue in office for a further period of one year at a time not exceeding a continuous period of an additional five years, in which case, each such election shall be subject to the submission to, and acceptance by, the President, after consultation with the Judicial Service, of a medical report as to the mental and physical fitness of the judge so to continue in office.”
If this proposal sails through, Chief Justice Luke Malaba may stay in office beyond 70 years subject to the president’s approval.
However, the proposed provision still retains the retirement age for High Court judges at 70 years.
Legal analysts said the proposed amendment compromised the judiciary as judges would be subjected to the whims of the president who approved their stay in office.
Constitutional expert, Kucaca Phulu, noted the proposal was undesirable as it consolidated President Emmerson Mnangagwa’s stay in power.
He noted that “lack of security of tenure” was worrying as judges would have to renew their tenure every year after they turned 70.
“Their renewal of tenure becomes subject to the whims of the president and that poses extreme undue influence to judges as some may act in an unpalatable manner to have tenure of office renewed.”
Phulu suggested that the proposal could have listed a full tenure in office rather than giving conditions such as bringing one’s medical certificate.
“This proposal aims to weaken and compromise the judiciary,” he said.
Professor Lovemore Madhuku concurred it was international best practice for judges to retire at 70 years.
“How on earth can someone just wake up and say ‘I want to increase the age of retirement for judges from 70 to 75years but I will not do it for all the judges. I will do it for judges in the Supreme Court and Constitutional Court but if you are the High Court you retire at 70,” he said.
“There are very few countries where judges retire beyond 70 and those are the most developed such as the UK and US. It’s only fair that judges retire at 70 and that has been the position since 1980. Chief Justice Enoch Dumbutshena retired at 70 mandatorily, followed by Chief Justice Anthony Ray Gubbay who was replaced by Chief Justice Godfrey Chidyausiku.
“We expect Chief Justice Malaba to retire at 70 mandatorily as well, so at this stage to make an amendment that may be seen to be dealing with a current chief justice is also not good politics for the country.”
Prof Madhuku, also a member of the political actors’ dialogue (POLAD), said the subcommittee he chairs was against the proposed amendment.
“We are opposed to this provision because the constitution does not allow us to amend it in such a way that we reward sitting judges. Section 328 (7) of the Constitution, says when you amend something, you can’t benefit a sitting judge, so all those judges who were appointed to retire at 70 cannot benefit from an amendment that increases their stay in office. This is very standard in the constitution, so the proposed amendment is unconstitutional and cannot be accepted,” he said.
He ridiculed the requirement for judges to provide a medical certificate to certify that they were still for fit for office after 70 years.
“How does the president approve a medical certificate? On what basis of knowledge will a sitting president know that the certificate means you are fit or not. Simply that’s not a thing to put in a constitution of any country, we cannot endorse things like that.”
Prof Madhuku also said judges who wanted promotions must go through public interviews expect for the Chief Justice, deputy Chief Justice and the Judge president who are appointed by the president.
“The Bill proposes if you are to be promoted from the High Court to the Supreme Court or from Supreme Court to the Constitutional Court you will not go through an interview, we have said no to that – all judges must go through an interview,” he noted.