Things Might Get Little Messy If Malaba Appeals - Magaisa

All the judges of the Supreme Court and the Constitutional Court are cited in these proceedings, which means they have a direct role and interest in the case. The implication is that all the judges who must constitute a hearing panel either at the Supreme Court or the Constitutional Court are conflicted: they cannot sit in judgment of a case in which they are parties.

Therefore, while there will be an appeal and while the order requires confirmation of the Constitutional Court, none of the current judges are eligible to sit on the judicial panels at the Supreme Court and the Constitutional Court. Remember a constitutional crisis might occur when existing constitutional mechanisms are no longer capable of providing a solution to a dispute. Without a valid judicial panel at either superior court among the crop of current judges, another way must be found otherwise it is a cul-de-sac.

One approach would be to hire a current or retired judge to fill the gap. However, the legality of an entire judicial panel consisting of acting judges might be in question. Both section 166(2) and 168(2) provide that where there is a need for an additional judge for a limited period, the Chief Justice may appoint a judge or former judge to act as a judge for that period. However, the problem with this is that following the High Court ruling, there is currently no substantive Chief Justice.

But even if an Acting Chief Justice can appoint, the problem with the current one is that she is also conflicted because she is a litigant in the relevant legal proceedings. A player in the match cannot choose the referee because that would lead to bias, whether real or perceived. Therefore, as things stand, it is arguable that no one can properly and lawfully appoint members of a judicial panel, both at the Supreme Court and the Constitutional Court. They all have an interest in the matter.

In any event, section 166(1) which defines the Constitutional Court makes it mandatory that it must have a Chief Justice and the Deputy Chief Justice. With Malaba’s retirement, there is no Chief Justice and, as we have already observed, both Acting Chief Justice Elizabeth Gwaunza and Deputy Chief Justice Paddington Garwe are conflicted because they are cited as parties in the proceedings…

We can see the difficulty that I have referred to in recent weeks: there is a constitutional crisis when prevailing constitutional mechanisms are not able to successfully resolve a dispute. In this case, the chain of illegality is long and impossible to break.