BY HARRIET CHIKANDIWA
ATTORNEY-GENERAL Prince Machaya has said the extension of Chief Justice Luke Malaba’s term by five years after the signing of Constitutional Amendment (No 2) Bill into law was constitutional.
Machaya was responding to a High Court application by Young Lawyers Association who were seeking to overturn President Emmerson Mnangagwa’s extension of Justice Malaba’s term on the basis that procedure leading to the enactment of Constitutional Amendment (No 2) Bill into law.
In the High Court application, the Young Lawyers Association cited the Judicial Service Commission, Justice Malaba and Machaya as respondents.
Young Lawyers Association leader and war veteran Frederick Mutanda, who is the second applicant, said the reappointment of Justice Malaba would plunge the country into a constitutional crisis.
Machaya said the causes of action established in the relief sought are clearly matters of law which are best dealt with in heads of arguments.
“In this affidavit, therefore, I will limit myself to indicating the nature of my opposition to the requested relief on the facts upon which it is founded and the basis upon which my opposition is founded,” Machaya said.
“The first applicant clearly assumes that by extending the retirement age of judges of the Constitutional Court, the Constitutional Amendment has introduced an extension to a term limit provision which is subject to the provisions of section 328(7) of the Constitution.”
Machaya added: “A term limit provision within the Constitution is provided for in period-specific language with respect to the applicable public office and has no bearing whatsoever on age qualification for assumption of public office or the age at which an incumbent must retire from public office.
“First applicant’s assumption is, therefore, unsustainable upon proper reading and construction as a whole. Accordingly, there is nothing to prevent second responded from benefiting from the provisions of the Constitutional Amendment if he meets the conditions prescribed for him to continue serving as chief justice between the ages of 70 years and 75 years.”
Machaya said the Young Lawyers Association clearly assumed that there was a Constitutional Court in existence at the time that Justice Malaba was appointed a judge of the Supreme Court.
“In my respectful view, there was no Constitutional Court in existence prior to March 22 2013, that being the date on which the Constitution was published. The fact that the Supreme Court determined constitutional matters did not make it a Constitutional Court. It was, in any event, equally competent for other inferior courts to also determine constitutional matters.”
On Wednesday, Mnangagwa extended Chief Justice Malaba’s term by five years, defying pressure from critics who said the move created a constitutional crisis.
The extension follows a constitutional amendment rushed through Parliament by the ruling Zanu PF party which gave Mnangagwa authority to unilaterally appoint judges and extend their terms of office. Mnangagwa signed the Constitutional Amendment (No 2) Bill into law last Friday.