The Forum’s Executive Director, Dr Musa Kika has approached the High Court on an urgent basis seeking to bar the extension of the term of office of the outgoing Chief Justice Luke Malaba, under the recently passed Constitution of Zimbabwe Amendment (No. 2) Act which was signed into law by President Mnangagwa on 7 May 2021.
Malaba turns 70 on 15 May 2021 and is due to go on retirement in terms of the provisions of the original 2013 Constitution. Kika argues that the provisions under which Malaba would benefit from, which were introduced in terms of an amendment to Section 328(7) of the Constitution, would allow the Chief Justice, his deputy, Justice Elizabeth Gwaunza as well as Constitutional Court and Supreme Court judges to have their terms of office extended by the President on production of a medical certificate confirming that such a judge would be fit enough to continue on the bench.
Section 328 requires the holding of a referendum where an amendment Bill seeks to amend a term-limiting provision. Section 328(7) also makes it clear that any amendment to a term-limit provision does not apply to any person who held or occupied that office at the time before the amendment. Kika has also cited as respondents all the Constitutional Court and Supreme Court.
Kika is seeking to have any purported extension of Malaba’s term of office after 15 May 2021 to be null and void and that anything Malaba attempts to do after 15 May 2021 be equally declared to be null and void. Pending the appointment of a substantive Chief Justice to replace Malaba, Kika seeks to have the current Deputy Chief Justice Elizabeth Gwaunza fill in the vacancy in an acting capacity while the third most senior judge, Paddington Garwe, becomes the Acting Deputy Chief Justice. Kika, who is represented by the Zimbabwe Human Rights NGO Forum where he is the Executive Director, has filed this application in his personal capacity.