ConCourt reserves ruling in case to decide fate of Chief Justice Malaba

By Nyashadzashe Ndoro | Nehanda Courts |

Seven Constitutional Court judges led by Justice Elizabeth Gwaunza have reserved judgement in a case that will decide the fate of embattled Chief Justice Luke Malaba.

The judges are expected to rule on a case in which a Zanu PF activist, Marx Mupungu, is challenging a High Court ruling that Malaba ceased to be Chief Justice when he turned 70 on May 14 this year.

On Wednesday, the ConCourt judges refused to recuse themselves from presiding over the case when Zimbabwe Human Rights NGO Forum executive director Musa Kika filed a fresh application on Tuesday seeking their recusal because they were cited as respondents in a ruling that ended Malaba’s term of office.

Using a controversial Constitutional Amendment Number 2 Act President Emmerson Mnangagwa extended Malaba’s term of office by an additional five years.

But three High Court judges, Justices Happias Zhou, Edith Mushore and Jester Charewa overturned Mnangagwa’s decision in May leading to the top judge filing an appeal at the Supreme Court.

A Bulawayo man, Marx Mupungu, represented by Professor Lovemore Madhuku, applied to the ConCourt challenging the High Court ruling, arguing that Mnangagwa acted constitutionally.

But before the matter was heard on Wednesday, Kika cited 18 of the judges in his last application including the ConCourt judges seeking their recusal from presiding over the case and they had to decide today on whether to proceed with the case.

But Justice Gwaunza dismissed Kika’s application.

“The application for recusal of the sitting bench is hereby dismissed” adding that the reasons for its dismissal would form the actual ruling of the primary case.

In an interview, Madhuku said Kika’s application was at first wrongly placed but the judges allowed his lawyers to proceed with an oral application after they had admitted to erring. Madhuku in court argued that the Constitution does not allow the reconstitution of the ConCourt.

“What has transpired from morning up to now is, Musa Kika and other respondents wanted judges of this Court not to sit because the Constitutional Court judges were cited in the High Court ruling.

“So, initially we argued that they had not properly brought the application for recusal because when you want the judges to recuse themselves you must make an application. That is the ruling that came after the break which allowed them to make an oral application.

“We opposed that application for recusal and the arguments we were making was that the Constitution does not allow the reconstitution of the ConCourt,” Madhuku said.

He added that the judges in their ruling said “we are a country, you cannot disable the court.”