FULL TEXT: “Chief Justice Malaba Must Resign As A Judge”

Opposition MDC led by advocate Nelson Chamisa has claimed that Chief Justice, Luke Malaba must cease to be a judge if he wants to participate in politics. The party’s remarks follow comments by the judge on the ban on MDC demonstrations. Malaba had said that the courts had never denied the MDC alliance the right to demonstrate. We present below the part’s full statement.

Chief Justice Malaba wades into the political arena

The judiciary is a key cornerstone of any State. Zimbabwe theoretically is a constitutional democracy where the Constitution is the supreme law of the land and any law, practice, custom or conduct inconsistent with the same is invalid to the extent of the inconsistency.

To this extent, the judiciary plays a key role of oversight in respect of constitutional compliance. Further, the judiciary plays a specific role in safeguarding human rights, and freedoms and the rule of law. The MDC thus respects the judiciary, and its importance in Zimbabwean society, despite the fact that once in a while, we differ fundamentally with the some judicial opinions expressed in court judgments.

It is in this respect, that we regret and find unfortunate the remarks of the Chief Justice on the rule of law as reported in The Herald edition of 30 September, 2019, concerning last week’s visit by the United Nations Special Repporteur, Mr Clement Voule, on the right to freedom of peaceful assembly and association.

It was reported that it was the Chief Justice’s opinion that the MDC’s lawyers approached the wrong courts and had an appeal against the decision of the police to ban their planned demonstrations last month.

For starters Mr Chief Justice, as a party, we have noted an appeal to the Supreme Court against the decision of Justice Musakwa, which ruled that our application to the High Court to set aside the prohibition order issued on the 15th of August 2019 was unlawful. For a Chief Justice to pronounce a comment and make a judgment on an appeal that is pending before the same court is wrong, unprocedural and unprofessional.

The truth of the matter is that the MDC raised procedural issues against the issuance of the prohibition order, which can only be entertained by a review court, namely the High Court.

For instance, we pointed out that it was wrong and unprocedural for the police to issue a prohibition order late in the night, a day before the intended demonstration on the 16th of August 2019 when it was too late for the MDC to respond adequately.

Moreover, as the Chief Justice himself will know, over the years, parties, including the MDC have consistently and successfully applied before the High Court for an order, allowing the same to march and restraining the police.

Only last week, the very same High Court granted an application in favour of medical doctors seeking to protest against the abduction of Doctor Peter Magombeyi.
Besides, the Chief Justice will be aware that in respect of our notifications for Bulawayo, Gweru, Masvingo and Mutare, which protestations were also banned by the police, the MDC did in fact appeal to the Magistrate Court.

Regrettably and as is common cause, the Bulawayo Magistrate Court dismissed our application. In the case of Gweru, Masvingo and Mutare, our appeals were not even heard. The Magistrate simply delayed or disappeared or avoided handling the applications.

The truth of the matter therefore is that the authorities in Zimbabwe have failed to recognise the right to freedom of assembly, the right to demonstrate peacefully guaranteed and codified in terms of the Constitution of Zimbabwe.

A prudent Chief Justice must avoid descending into the political arena. It is our strong view that the Chief Justice has descended into the political arena.

The Chief Justice must not use the law as a political battlefield.

The Chief Justice must not masquerade as a judge if he has a political agenda.

We implore him to resign from the bench and take up membership of Zanu PF so that we operate on equal terms.

We therefore ask the Chief Justice to consider his position and to protect the judiciary and the Constitution of Zimbabwe.

In this regard he has failed and failed miserably.

Luke Tamborinyoka
Deputy National Spokesperson


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