By Peter Sinkamba
Whilst we applaud the decision of Constitutional Court to maintain that the 64 ministers who illegally stayed on in office after the dissolution of Parliament in 2016 must pay back the money they received during the period they illegally occupied their positions, we believe that the Court lost a grand opportunity to pronounce itself on the core issue that matters the most with regard to the court’s operations: the question of court’s jurisdiction to review decisions of the Full Bench.
One of the most fundamental question of law that confronts court systems is whether a given court has jurisdiction to preside over a given case. A jurisdictional question is broken down into three components:
1. Whether the court has jurisdiction to even hear the case involving the particular defendant(s)
2. Whether the court has jurisdiction to render the particular judgment sought
3.Whether the court has jurisdiction over the subject matter
With regard to the first jurisdictional question, the Concourt, in the case at hand demonstrated it had jurisdiction to hear the particular defendants (i.e. the former ministers), except that the Attorney General was a wrong party. As the Court rightly held, it is against public interest for the Attorney General to represent private persons.
With respect to the second jurisdictional question, the court also demonstrated that it had jurisdiction to render a particular judgment sought. In the case at hand, the Court upheld its earlier decision.
However, concerning the third jurisdictional question, crux of the matter was whether the Concourt has jurisdiction to re-open and re-hear decisions of the Full Bench.
In our view, this is where the court lost it. The court failed to pronounce itself on whether it has jurisdiction to re-open and review judgments of the Full Bench.
In our view, failure on this fundamental question has serious long-term implications on the court’s future operations.
For example, with regard to the Ministers’ case, the consequence is that the former ministers can now still go back to the same court, may be individually this time, and flood the court with 64 claims, seeking to be heard, on the same reliefs. So, consequent to the Ruling, we should expect a floodgate of cases. It is therefore unlikely that most of the former ministers will pay back any time soon. If it has taken one year to conclude one application, what more the 64 individual claims? After all, with the biting economy, everyone is looking a every opportunity available not to pay. In this case, the court has created an opportunity to delay the repayments.
Furthermore, all other litigants who have lost, or will lose cases, still have a second chance to go back and seek re-opening and review of their cases. The question is: how many cases go to this court? Considering the court’s serious staffing deficit, will it really cope with the open Kariba Dam floodgates?
Put simply, the ‘partial’ decision on the jurisdictional questions has unnecessarily opened floodgates. So we should expect loads and loads of cases where claimants will be seeking re-opening and review of cases. Mind you, this is the court of final jurisdiction, but without human rights jurisdiction.
With this decision ‘done and dusted’, tighten your belts as we take off on a bumpy long-haul flight! Both the headwinds and tailwinds appear to be too strong!