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4 days left: 70 year old Chief Justice Malaba fights to remain in top job

By Nyashadzashe Ndoro | Nehanda Courts |

Chief Justice Luke Malaba has vowed to fight for the extension of his tenure in office by opposing an urgent chamber application filed by Zimbabwe Human Rights NGO Forum Executive Director, Dr Musa Kika at the High Court that is seeking to bar the extension of Malaba’s tenure in the top job.

Chief Justice Luke Malaba
Chief Justice Luke Malaba

Justice Malaba turns 70 on 15 May 2021 and is due to go on retirement in terms of the provisions of the original 2013 Constitution. But under the recently passed Constitution of Zimbabwe Amendment (No. 2) Act which was signed into law by President Emmerson Mnangagwa on 7 May 2021, Malaba’s term in office can now be extended.

In his court application, Kika seeks to have any possible 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.

Kika, who filed the application in his personal capacity, further argues that, pending the appointment of a substantive Chief Justice to replace Malaba, the current Deputy Chief Justice Elizabeth Gwaunza may fill in the vacancy in an acting capacity while the third most senior Judge, Paddington Garwe, becomes the Acting Deputy Chief Justice.

Kika cited as respondents all the Constitutional Court and Supreme Court Judges and Justice Minister Ziyambi Ziyambi.

However a defiant Justice Malaba has expressed his interest to stay in office beyond the mark-up age of 70 years. Through his lawyers cited as Chinake, N Ebrahim, F Tachiweyi, Justice Malaba vowed to oppose Kika’s application

“We place it on record that the Application is opposed in its entirety on a variety of grounds and by copying this letter we are advising the Registrar of the High Court accordingly.

“Kindly acknowledge receipt of this letter by stamping a copy and returning it to the bearer,” read the court papers seen by Nehanda Radio.

Kika is challenging 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.

He added that 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.

Meanwhile, the Young Lawyers Association of Zimbabwe has also filed an urgent chamber application in terms of Section 85 (1) of the Constitution of Zimbabwe challenging the extension of Justice Malaba’s tenure.

“Further, there is a case made out with regard to whether there would be in the circumstances, a competent Constitutional Court as envisaged in law, if the Honourable Chief Justice remains in office. This is an issue, which if not dealt with urgently, would plunge the whole nation in a constitutional crisis where there is no apex court, this question deserves to be ventilated and
dealt with immediately.

“More importantly, sight must not be lost of the fact that the Constitutional Court only enjoys exclusive jurisdiction in matters set out under Section 167 of the Constitution of Zimbabwe, as amended.

“If a dispute arises regarding such issues, there will be no forum or court to deal with these issues. Accordingly, there is a need to deal with this matter immediately, to ensure that the right of access to this Court is maintained.

“The issues raised are of public interest in relation to the rule of law and protection of fundamental rights as envisaged in terms of Section 69 Q), Section 56 (1) and 56 (3) of the Constitution of Zimbabwe, as amended, and there is need to ensure that the these issues which impact on public confidence in the Judiciary are dealt with immediately,” read the court application. Nehanda Radio