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Luke Malaba avoids jail…. not in contempt of court: High Court rules

By Nyashadzashe Ndoro | Nehanda Courts |

Two High Court judges, Sylvia Chirawu-Mugomba and Amy Tsanga have dismissed an urgent application by Human Rights NGO Forum executive director Musa Kika to have Chief Justice Luke Malaba found in contempt of court for returning to office after a ruling that he was retired.

Zimbabwean President Emmerson Mnangagwa talks to the Chief Justice Luke Malaba during the swearing in ceremony of the country's vice presidents at State House in Harare, Zimbabwe, on December 28, 2017. REUTERS/Philimon Bulawayo
Zimbabwean President Emmerson Mnangagwa talks to the Chief Justice Luke Malaba during the swearing in ceremony of the country’s vice presidents at State House in Harare, Zimbabwe, on December 28, 2017. REUTERS/Philimon Bulawayo

Justices Tsanga and Mugomba heard the matter after Justice Webster Chinamora recused himself from the original three-judge bench citing professional reasons.

The contempt of court case was sparked by the return of the Chief Justice to work after placing an appeal at the Supreme Court challenging a High Court judgment blocking the extension of his tenure beyond 70 years by President Emmerson Mnangagwa.

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“The application for civil imprisonment for the first respondent (Malaba) contempt of court is dismissed,” read the judgment.

One of Kika’s lawyers, Wilbert Mandinde said they were going to study the ruling and come up with a way forward.

“The court has ruled that the application filed by Musa Kika be dismissed. Basically the application for contempt of court against the former Chief Justice Luke Malaba has been dismissed by the court. We are yet to get to the full judgement. We will study the judgement and make a decision as to how we are proceeding,” he said.

Kika, through his lawyers, argues 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 Malaba’s argument was, the appeals filed at the Supreme Court by Justice Minister Ziyambi Ziyambi and Attorney-General Machaya were 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.” Nehanda Radio

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