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Madhuku Strategy: Professor says Supreme Court can hear Malaba appeal

Professor Lovemore Madhuku has dismissed claims that a High Court judgment blocking the extension of Chief Justice Luke Malaba’s term in office cannot be appealed at the Supreme Court.

University of Zimbabwe law lecturer Professor Lovemore Madhuku
University of Zimbabwe law lecturer Professor Lovemore Madhuku

This comes after High Court judges Justice Jester Charewa, Justice Happias Zhou and Justice Edith Mushore ruled Justice Malaba’s five-year extension term of office by President Emmerson Mnangagwa was illegal.

Mnangagwa used the controversial Amendment Number 2 Act to extend Malaba’s tenure.

The legal action against Justice Malaba was filed by Zimbabwe Human Rights NGO Forum Executive Director Musa Kika through a team of lawyers led by Advocate Thabani Mpofu.

Malaba turned 70 two weeks ago, meaning he is now retired. 

The judgement was then appealed against by the Judiciary Service Commission (JSC) and Justice Minister Ziyambi Ziyambi.

Human rights lawyers led by Advocate Mpofu and Tendai Biti are arguing that the judgement was “declaratur” and it cannot be appealed at the Supreme Court. They also said that the Supreme Court judges are cited as respondents meaning that they are conflicted to preside over the matter.

But law expert Madhuku differs. He argues: “That application may not succeed because the issue on appeal is a narrow point of law: any panel of senior judges ought to have the integrity to decide that legal point and give a detailed written judgment. We will all be able to read and analyse it.

“The issue of looking for additional judges can only arise if the panel of senior judges of appeal decide to recuse themselves.

“If that happens, at least three judges of the Supreme Court must be appointed for a fixed term under section 186(3) of the Constitution.

“Our law does not permit a Supreme Court panel of acting judges only. In an important matter such as this one, the appeal must be heard by five judges, three of whom must not be acting judges. The appointment of judges for a fixed term follows the same procedure as that of permanent judges.”

Yesterday lawyers filed an urgent High Court application seeking the arrest and jailing of Justice Malaba for contempt of court after showing up for work in defiance of a judgment blocking the extension of his tenure as Chief Justice.

They countered Ziyambi’s appeal citing that the government was mistaken “in taking the view that the appeal has suspended the operation of the judgment of this court.”

They added: “This is for the reason that the judgment of the court is a declaratur and is for that reason not suspended by the noting of an appeal. The appeal noted by the second respondent does not accordingly have the effect of suspending the operation of the judgment of this Court.

Malaba’s ouster was also triggered by two separate applications brought by Kika and the Young Lawyers Association of Zimbabwe (YLAZ). Nehanda Radio

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