By Mashudu Netsianda
The Judicial Service Commission (JSC) has appointed Justice Elizabeth Gwaunza acting Chief Justice pending appeal by Government against a High Court ruling striking down an amendment to the Constitution which sought to extend the retirement age of senior judges from 70 to 75 years.
Harare High Court Judges, Justices Happias Zhou, Edith Mushore and Jesta Charehwa on Saturday ruled that incumbent judges of the senior courts could not benefit from an amendment to the Constitution extending their term limits.
The ruling had the effect of retiring Zimbabwe’s Chief Justice, Luke Malaba, who turned 70 — the legal retirement age — on Saturday.
The bench also ruled that the extension of term provided by section 186 of the Constitution does not apply to any sitting judges of the Constitutional Court and Supreme court.
The court also ruled that the amendment needs to be put to a public referendum. The ruling followed an application by the Young Lawyers Association of Zimbabwe (YLAZ) at Harare High Court.
Pursuant to the High Court ruling, the JSC said Justice Gwaunza is acting Chief Justice.
“The JSC wishes to advise that in compliance with the Order of the High Court of Zimbabwe, but subject to a pending appeal to be filed in due course by the 2nd to the 19th Respondents; and the 1st and 2nd Respondents respectively, in HC 2128/21 and HC 2166/21; the Honourable Deputy Chief Justice of the Republic of Zimbabwe, Justice Elizabeth Gwaunza, is now the Acting Chief Justice of the Republic of Zimbabwe by operation of law in terms of Section 181 (1) of the Constitution of Zimbabwe,” read the statement.
In a statement at the weekend, Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi said Government would exercise its right to appeal the ruling.
“We have taken note of the decision made by the court, and as a country which respects the rule of law, we will respect that decision, but you must also know that as litigants, we have our rights which are protected by the law. With the greatest of respect, we do not agree with the decision of the court for so many reasons and for that reason, we have already instructed our lawyers to file an appeal first thing on Monday morning,” he said.
Minister Ziyambi said Government lawyers have not been furnished with court’s full judgment, which he said they would require to file an appeal. The ruling, he said, was a typical case of judicial overreach which Government would not accept. The Chronicle