The law really has a nose of wax

IF you are a layman like Bishop Lazi, you might probably be nursing a splitting headache trying to understand the drama that played out, and continues to play out, in the courts around the legal validity of Chief Justice (CJ) Luke Malaba’s continued tenure as head of the Judiciary.

The top judge turned 70 on May 15, which, according to the 2013 Constitution, meant he was supposed to retire.

However, the Omnibus Constitutional Amendment Bill, which was gazetted on May 7 — eight days before his birthday — ostensibly entitles him to serve for five more years until he turns 75, subject to confirmation he is of sound mind and health.

But the ruling by High Court Justices Happias Zhou, Edith Mushore and Helena Jester Charewa nullified the extension because it purportedly does not apply to sitting judges of the Constitutional Court and Supreme Court.

Well, that finding will now be tested in a superior court. Or will it? Uhmmm!!!

Malaba was appointed Chief Justice on May 27, 2017, which means today he is four days shy of serving four years as CJ.

So, essentially, as envisaged in 2013, his age supposedly disables him — inexplicably — from continuing as Chief Justice.

Ordinarily, if age was still on his side, he would have served for another 11 years.

Extending the tenure of the Chief Justice beyond the statutory retirement age is neither uncommon nor peculiar to Zimbabwe.

It reminded the Bishop of the first Chief Justice in a democratic South Africa, Michael Corbett.

He was appointed CJ in 1989 by a reluctant then-President Pieter Willem (P.W) Botha when he was 66 years old.

He was due to retire in 1993 when he turned 70, but his term was extended twice before he retired in 1996.

Even his predecessor, Chief Justice Pieter Jacobus Rabie, who turned 70 in 1986, had his tenure extended on an ad hoc basis by P.W. Botha until he retired in 1989.

According to the South African Constitution adopted in 1996, judges of that country’s Constitutional Court serve for a non-renewable term of 12 years or until they reach the age of 70, whichever is earlier.

These limits, however, may be extended by an Act of Parliament, and not a referendum.

Zimbabwe’s supreme law envisages that changes to term limits require a referendum.

And this is where it gets interesting.

Government insists that what was changed was the age limit and not the term limit, which means the amendments do not necessarily have to be put to the public for a vote.

Prejudice

But even in the aftermath of the High Court ruling and the subsequent appeal by Government, the current status of CJ Malaba is still being heavily contested.

Does the appeal lodged by Government suspend the operation of the declaratur granted by the High Court? Is it even possible?

Or is Malaba still the CJ pending a determination by a superior court?

So, what is really going on?

The questions are obviously unending.

What has been particularly fascinating for the Bishop, however, is the unhappy realisation that differences in legal opinions on these and many other questions that naturally arise from this seemingly legal or constitutional conundrum are so wide that they make it easy for the uninitiated to fall into the dark abyss of unknowingness.

Suffice to say, despite the smorgasbord of legal opinions volunteered by various lawyers, Zimbabweans have been left none the wiser.

Bishop Lazarus is a simple man of the cloth.

He is not a lawyer, nor does he pretend to be one, but he is always enchanted by how lawyers have this uncanny ability to use their craft — or is it witchcraft? — to mould the law to suit their convenient biases, prejudices and worldview.

Most of them look at the law through jaundiced legal eyes.

This is why they say the law has a nose of wax, which is easily malleable.

They also say a lawyer’s opinion is worth nothing unless paid for.

Truth-seekers such as Bishop Lazarus are therefore left with the almost impossible task of sifting through diametrically opposed legal opinions.

But how is it possible to tell true legal opinions from false ones?

Since jurisprudence is a branch of philosophy that investigates the nature of law in relation to human attitudes, values and practices, German philosopher Friedrich Wilhelm Nietzsche in his work “Beyond Good and Evil” provides some valuable insights.

“The falseness of an opinion is not for us any objection to it: it is here, perhaps, that our new language sounds most strangely,” said Nietzsche, adding: “The question is, how far an opinion is life-furthering, life-preserving, species-preserving, perhaps species-rearing, and we are fundamentally inclined to maintain that the falsest opinions (to which the synthetic judgments a priori belong), are the most indispensable to us, that without a recognition of logical fictions, without a comparison of reality with the purely imagined world of the absolute and immutable, without a constant counterfeiting of the world by means of numbers, man could not live — that the renunciation of false opinions would be a renunciation of life, a negation of life. To recognise untruth as a condition of life; that is certainly to impugn the traditional ideas of value in a dangerous manner, and a philosophy which ventures to do so, has thereby alone placed itself beyond good and evil.”

In simple English, the German philosopher asserts that sometimes we are willing to embrace false opinions as long as they fit our own bigoted narratives and perpetuate our selfish designs.

This is where the Bishop draws the line.

1 Timothy 1:3-8 encourages us to approach issues with a pure heart, a good conscience and a sincere faith.

“As I urged you when I went into Macedonia, stay there in Ephesus so that you may command certain people not to teach false doctrines any longer or to devote themselves to myths and endless genealogies. Such things promote controversial speculations rather than advancing God’s work — which is by faith. The goal of this command is love, which comes from a pure heart and a good conscience and a sincere faith. Some have departed from these and have turned to meaningless talk. They want to be teachers of the law, but they do not know what they are talking about or what they so confidently affirm.

We know that the law is good if one uses it properly.”

Hyper-legalism

Yes, the law is definitely good if one uses it properly.

Unfortunately and unhelpfully, we seem to have entered a unique era of “hyper-legalism”, where a bad-faith approach is now increasingly being used to interpret the law.

And obviously such convenient interpretations are then used in politically intriguing cloak-and- dagger games, which also often involve smoke and mirrors.

Remember the furore that followed Vice President Kembo Mohadi’s March 1 resignation when President Mnangagwa was accused by self-anointed legal gurus of breaching the Constitution by not notifying the public in time as prescribed by Section 96(2) of the Constitution.

Professor Jonathan Moyo and Dr Alex Magaisa weighed in with their “legal opinions”, after which constitutional law expert and lecturer Professor Lovemore Madhuku brutally took them down, especially when he dismissed the latter’s article as “shallow and simplistic, unless meant for Twitter”. Kikikiki.

But, crucially, Madhuku talked about an inner legal eye that is used to interpret implied provisions of the law, and this is critically instructive.

This eye obviously cannot see clearly when it is clouded by prejudice.

Sadly, it seems we might have to be bamboozled by legalese for some time, especially from a hyper-legal opposition party, the MDC-A, whose top leadership looks more like a University of Zimbabwe (UZ) law alumni than the leadership representing ordinary folk who are interested in jobs and a happy life, and not law lectures. Kikikiki.

The leader (Nelson Chamisa) is a lawyer.

The three vice presidents — Lynette Karenyi Kore, Tendai Biti and Welshman Ncube — are all lawyers.

The treasurer (David Coltart) and the vice chair (Job Sikhala) are lawyers.

And, hell, the spokesperson (Fadzayi Mahere) is also a lawyer. Lawyer, lawyer, lawyers everywhere.

It is, therefore, quite unsurprising that this “ultra-legal” mob and its bedfellows is now increasingly gravitating towards lawfare as a weapon of choice.

Is this their staircase to power?

Do they understand what they are doing or the ramifications therefrom?

Well, the jury is out.

These are truly interesting times to be both a layman and ignorant.

Blessed are the meek for they shall inherit the earth.

Bishop out!