From Nazi Germany to Zimbabwe and beyond

The rise of authoritarianism can have devastating consequences for entire nations, as demonstrated by the Nazi rule in Germany. Adolf Hitler established an authoritarian regime by suppressing democracy, ultimately leading to a world plagued by suffering. The story, however, is not about Germany, but about another nation – Zimbabwe – that also experienced a descent into dictatorship.

In 2021, Zimbabwe's President Emmerson Mnangagwa's government passed a constitutional amendment to raise the retirement age of judges, which sparked debates on whether it was appropriate to manipulate the Constitution to retain an incumbent Chief Justice. The amendment was timed to benefit Chief Justice Luke Malaba, who was on the verge of turning 70.

The government claimed that Parliament had legally changed the retirement age, but critics argued that the Constitution did not allow any amendment to the term-limit provision. Legal challenges were raised, questioning whether constitutional safeguards could be circumvented by a mere constitutional amendment without a referendum.

The High Court ruled that increasing the retirement age effectively extended judicial tenure, and therefore could not be applied to serving judges without a national referendum. The Mnangagwa regime condemned the judgment and appealed it. The Constitutional Court, however, overturned the High Court's decision, allowing Malaba to remain in office. This move raised concerns about the judiciary becoming an appendage of the Executive, with the amendment dubbed the "Malaba Clause."

The Malaba affair resulted in international condemnation, with the UN expressing serious concerns about the constitutional amendment undermining judicial independence. The story serves as a warning to other countries, highlighting the importance of upholding the separation of powers and preventing the manipulation of constitutional and judicial processes for political gains.