Claudious Marimo and Movement for Democratic Change v The Minister of Justice, Legal & Parliamentary Affairs and Others

The first applicant was a candidate for election as a member of Parliament for Goromonzi Constituency in the general election held on 31 March 2005, sponsored by the second applicant (the MDC). He lost to the fourth respondent, a ZANU-PF candidate. The first applicant filed an election petition on 15 April 2005 with the Electoral Court established under section 161 of the Electoral Act [Chapter 2:13], which came into operation on 1 February 2005. On 5 May 2005, the Chief Justice appointed five High Court judges to preside over the Electoral Court pursuant to section 162(1) of the Act, which provided for appointment after consultation with the Judge President. The applicants challenged the constitutional validity of section 162(1), alleging it was inconsistent with section 92(1) of the Constitution, which required consultation with the Judicial Service Commission for appointments to special courts. The Chief Justice then re-appointed the judges on 1 June 2005 after consulting the Judicial Service Commission and the Judge President, but the applicants argued this was also invalid as Parliament had not enacted legislation authorizing such appointments.

• Whether the Electoral Court established by section 161 of the Electoral Act is a 'special court' as defined by section 92(4) of the Constitution
• Whether section 162(1) of the Electoral Act is inconsistent with section 92(1) of the Constitution regarding the appointment of persons to preside over special courts
• Whether the appointments of judges to the Electoral Court made by the Chief Justice were valid
• Whether the applicants' rights under sections 18(1) and 18(9) of the Constitution (right to protection of law and right to fair hearing by an independent and impartial court) were contravened

The Supreme Court granted the following declaratory relief: (1) The Electoral Court is a 'special court' as defined by section 92(4) of the Constitution; (2) Section 162(1) of the Electoral Act is inconsistent with sections 92(1) and 18 of the Constitution; (3) The initial appointments made without consulting the Judicial Service Commission are invalid; (4) Any appointments made without specifying the period of appointment are invalid; (5) All appointments made after consulting the Judicial Service Commission without Parliament having provided for the same are inconsistent with section 92(1) and section 18 of the Constitution and are invalid; (6) All appointments made by the Chief Justice to the Electoral Court, whether made on 5 May 2005 or 1 June 2005, are a nullity and set aside; (7) The first and second respondents are jointly and severally ordered to pay the costs of the application.

A court or adjudicating authority established by statute is a 'special court' under section 92(4)(b) of the Constitution if there is no right of appeal (directly or indirectly) from its decisions to the Supreme Court or High Court. Where a statute makes decisions of a court final on questions of fact, there is no right of appeal on those matters, and the court constitutes a 'special court'. Once Parliament establishes a special court, it is constitutionally bound to provide for appointment of persons to preside over that court in the manner prescribed by section 92(1) of the Constitution - either by the President after consultation with the Judicial Service Commission, or by the Chief Justice after consultation with the Judicial Service Commission if Parliament so provides. Consultation with the Judicial Service Commission is a mandatory requirement for valid appointment to a special court and cannot be substituted or abridged by Parliament. Any statutory provision for appointment that differs from the constitutional requirements in section 92(1) is inconsistent with the Constitution and void under section 3 of the Constitution. Appointments made pursuant to unconstitutional provisions are invalid, and a court presided over by invalidly appointed judges is not a 'court established by law' within the meaning of section 18(9) of the Constitution, thereby violating the right to a fair hearing by an independent and impartial court.

MALABA JA observed that the mere enactment of a law that is void by virtue of section 3 of the Constitution does not, in itself, deprive anyone of the 'right to protection of the law' under section 18(1), provided the judicial system provides a procedure by which interested persons can obtain a declaration of invalidity from the courts. Access to such a remedy is itself protection of the law. MALABA JA also noted the difficulty in suspending the operation of the declaration of invalidity to allow Parliament to correct the error, stating that such suspension would perpetuate a void and would not serve the purpose of enforcing the Declaration of Rights. It is for Parliament to enact valid legislation. ZIYAMBI JA added that if the Electoral Court is not a special court, then judges of the High Court cannot lawfully be appointed to preside in it, as the Constitution makes no provision for High Court judges to serve in subordinate courts other than special courts. ZIYAMBI JA also observed that the most favorable interpretation is that Parliament intended the Electoral Court to be a special court, and therefore the necessary legislation in accordance with section 92 must be enacted.

This judgment is significant in Zimbabwean constitutional jurisprudence because it affirms the supremacy of the Constitution and the separation of powers doctrine. The Court emphasized that judicial independence requires strict adherence to constitutional provisions regarding appointment of judicial officers, particularly those presiding over special courts. The case demonstrates that Parliament cannot legislate in a manner inconsistent with constitutional requirements for judicial appointments, even in specialized electoral matters. The judgment protects the independence of the judiciary by ensuring that appointments to courts exercising judicial power comply with constitutional safeguards, including consultation with the Judicial Service Commission. It establishes that security of tenure and proper appointment procedures are fundamental pillars of judicial independence that cannot be abridged by ordinary legislation. The decision also clarifies the definition and scope of 'special courts' under the Zimbabwean Constitution and reinforces the right of litigants to have their matters heard by properly constituted, independent courts as guaranteed under the Declaration of Rights.