Crisis Rocks Zimbabwe Justice System As Malaba Clings To Power

(AFRICAN EXAMINER) – Zimbabwe’s justice system has been thrown into turmoil which is capable of compromising delivery of justice.

The decision by President Mnangagwa last month to extend the term of office for Chief Justice Luke Malaba who had reached retired age has sparked a lot of controversy.

Justice Malaba turned 70 last month, and that is the legal age for retirement of public servants in Zimbabwe.

President Mnangagwa however extended his service in office for up to five years depending on yearly medical reports proving he is still mentally and physically fit to continue in the esteemed judicial office, allowing him to serve until the age of 75.

A law group, Young Lawyers Association of Zimbabwe (YLAZ) made a High Court application challenging the decision.

Three High Court Judges, Justices Happias Zhou, Edith Mushore and Jesta Charehwa ruled that incumbent judges of the senior courts could not benefit from an amendment to the Constitution extending their term limits.

The judges said Justice Malaba should retire as 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 if there is need for an amendment, it has to be put to a public referendum.

The Judicial Service Commission temporarily appointed Justice Elizabeth Gwaunza acting Chief Justice.

Justice Minister and the country’s Attorney General filed separate notices of appeal against the High Court judgment and successfully returned Justice Malaba back in office despite concerns from a cross section of Zimbabweans.

In a latest development, an ordinary citizen form Bulawayo has filed a Constitutional Court seeking an order that nullifies the three High Court judges’ ruling.

Mr Marx Mupungu aged 30 is represented by renowned constitutional lawyer Professor Lovemore Madhuku.

He said he filed the application in terms of Section 175(3) of the Constitution of Zimbabwe, 2013, as read with Rule 31(5) of Constitutional Court Rules, 20I6.

Mapungu cited Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi, Judicial Service Commission, Musa Kika, Young Lawyers Association of Zimbabwe, Fredrick Charles Moses Mutanda, Attorney General Mr Prince Machaya and President Mnangagwa as 1st to 7th respondents respectively.

He said he was concerned as a citizen that an undesirable state of affairs had arisen in the country and in the judiciary causing confusion, uncertainty and anxiety.

He said citizens in a country should have no doubt who a Chief Justice is, hence the Constitutional Court must address such issues.

The applicant said President Mnangagwa acted constitutionally.

“I am making this application in terms of section 175(3) of the Constitution of Zimbabwe. I am seeking an order varying or not confirming an order of constitutional invalidity made by the High Court of Zimbabwe handed down on 15 May 2021 in respect of two matters, namely HC 2128/21and HC 2166/21 which said the conduct of the President of Zimbabwe which gave validity to the continuation in office of CJ Malaba as Chief Justice in invalid.

“I am applying for an order not to confirm the orders of constitutional invalidity and to have them set aside. I am approaching this Court as a person with sufficient interest within the contemplation of section 175(3) of the Constitution. As a citizen by birth, I have a sufficient interest in defending and protecting the Constitution. Section 175(1) of the Constitution exists for my protection as a citizen: a lower court is a lower court, it has no final say on matters of constitutional validity. This is why we created this highest court on constitutional matters.

Section 175(1) of the Constitution cannot be avoided by the simple stratagem of pretending that an order of constitutional invalidity is not an order of constitutional invalidity.

“I believe the President of Zimbabwe acted constitutionally when he accepted the medical report on the mental and physical fitness of the Honourable Justice Luke Malaba. In so doing, the President was approving the Honourable Justice Malaba’s election to continue in office as Chief Justice for an additional five years,” said Mr Mupungu.

The respondents have 10 days to respond.

Justice Malaba was appointed Chief Justice in March 2017 after the retirement of the late Chief Justice Godfrey Chidyausiku.

A few months ago he was under fire from other judges and magistrates who wrote to President Mnangagwa complaining about victimization.

Justice Malaba was also under spotlight for ruling in favour of Mnangagwa’s Zanu-PF in a court challenge filed by opposition leader Nelson Chamisa following contested elections in 2018.