By Nyashadzashe Ndoro | Nehanda Courts |
Two High Court judges Justices Chirawu Mugomba and Emmy Tsanga have reserved judgement in the contempt of court case against controversial Chief Justice Luke Malaba.
The High Court was hearing an urgent chamber application made by Human Rights NGO Forum Executive Director Musa Kika who is applying for Malaba’s imprisonment for contempt of court over allegations that he resumed his duties as top judge despite the High Court ruling that nullified his extension of tenure by President Emmerson Mnangagwa.
Malaba turned 70 on the 15th of May, meaning he was no longer a Chief Justice. But through the Constitutional Amendment Number 2 Act, Mnangagwa extended his tenure by five more years, the decision which was repealed by the High Court.
Kika through his lawyers, Advocates Thabani Mpofu, Tendai Biti and Wilbert Mandinde 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.
Addressing the media, Mandinde said Malaba’s lawyers told the court that the top judge resumed work based on an opinion and not the High Court order.
“There was an opinion which the former judge is said to have relied on insead of the order itself. So, it was mainly the aspect of an opinion which caused that,” he said.
However, there was a drama before the matter was heard on Thursday as High Court judge Justice Webster Chinamora recused himself from Malaba’s contempt of court case arguing he recently met the Judiciary Service Commission Secretary (JSC) Walter Chikwana.
This prompted Malaba’s lawyers to request permission to appeal against the composition of the bench as a two judge bench but the request was dismissed entirely by Justices Chirawu and Tsanga.
Advocate Mpofu had already castigated the respondents for ostensibly trying to get a favourable judge.
Reports also claim Chinamora and Chikwana are family friends who live close to each other and always meet over different issues hence he recused himself on the basis that Chikwana works for the respondent.
However, Malaba’s argument is, the appeals filed at the Supreme Court by Justice Minister Ziyambi Ziyambi and Attorney-General Machaya are enough to have him cling to the job.
“Consequent upon the filing of the appeals…I am advised that regardless of whom the appeals were noted, the legal effect thereof was to suspend the operation of the two orders relied upon by the Applicant (Kika) in this matter,” Malaba said in one of his responses.
“I therefore legally resumed my duties as the Chief Justice of Zimbabwe following the noting of appeal by the Minister of Justice…and the Attorney General on the basis of the interpretation of the law to the effect that the noting of an appeal suspends an Order granted by the Court not only for the two Appellants but for the world at large.
“The Applicant has taken a different view of the legality of my return to office, and seeks an order against me for contempt of this Court alleging that I deliberately violated an Order of the Court whilst ignoring the facts set out above and the possible conflicting legal positions that can arise on the facts.”
Advocate Mpofu however, made submissions that Malaba had passed many judgements which were abided by and that “there is nothing stopping him from abiding by a decision of the High Court.”
Meanwhile, yesterday Mnangagwa appointed six new Supreme Court judges. They have since been sworn in by Deputy Chief Justice Elizabeth Gwaunza, all of them are former High Court judges to hear an appeal by embattled Malaba to remain in office.
He promoted Justice George Chiweshe and appointed Justice Chitakunye, Justice Kudya, Justice Chatukuta, Justice Musakwa and Justice Hlekani Mwayera. Nehanda Radio