Chief Justice Luke Malaba, who reaches the judges’ retirement age of 70 this Saturday should not remain in office beyond that day, says a Harare lawyer, Musa Kika, who has since filed an urgent court application seeking an order barring the incumbent from holding the office after May 15.
This is, however, contrary to President Emmerson Mnangagwa having signed last week, the Constitutional Amendment (No.2) Bill into law, which provides for the extension of the judges’ term of office from 70 by a further five years.
In his 28-page application, Kika who is also the director for Zimbabwe Human Rights NGO Forum, represented by Advocate Thabani Mpofu instructed by Cinginkosi Dube of Scalen and Holderness, said the amendment to the Constitution should not be used to benefit the current sitting judges.
The application cites Justice Minister Ziyambi Ziyambi as the first respondent, Chief Justice Malaba as the second respondent and Deputy Chief Justice Elizabeth Gwaunza as the third respondent and all the judges of the Supreme and Constitutional Courts as forth to the 17th respondents.
“That any action, conduct or deed of Luke Malaba post the 15th of May 2021 purportedly as the Chief Justice Of Zimbabwe is null and void and of no effect. That in accordance with provisions of section 181 of the Constitution of Zimbabwe, 2013, with effect from midnight on the 15th of May 2021, Elizabeth Gwaunza became/becomes the Acting Chief Justice of Zimbabwe until such a time as a substantive Chief Justice of Zimbabwe is appointed. That in accordance with provisions of section 181 of the Constitution of Zimbabwe, 2013, with effect from midnight on the 15th of May 2021, Paddington Garwe became/becomes the Acting Deputy Chief Justice of Zimbabwe until such a time as a substantive Deputy Chief Justice of Zimbabwe is appointed.”
Kika said aware of provisions of section 328(7) of the Constitution, the first respondent (Ziyambi) sought to word the amendment in a way that would purportedly avoid the effect of section 328.
“He was unsuccessful in that regard,” said Kika.
“I am advised that by no lawful design can such a result be achieved. I submit that the attempt to avoid provisions of section 328 is incompetent for the reasons that I shall give. The effect of section 325(7) on the tenure of judges of the Supreme Court can only be removed by an amendment to section 328(7). There is no such amendment. By section 328(9) such an amendment must go through a referendum. There has been no referendum.”
Malaba was appointed Chief Justice in March 2017, following the death of Godfrey Chidyausiku.
While his appointment had been celebrated as a ray of hope, the judiciary under his leadership has come under fire for being ‘captured by Zanu-PF’.