Lawyers have hinted that they will oppose any appeal against the ouster of Chief Justice Luke Malaba. The High Court last week ruled that Malaba had ceased to be the Chief Justice and Justice Elizabeth Gwaunza has since been appointed the acting CJ. We present the lawyers’ statement below.
ZIMBABWE Lawyers for Human Rights (ZLHR) and the Young Lawyers Association of Zimbabwe (YLAZ) note the landmark judgment of the High Court of Zimbabwe in the consolidated cases of Young Lawyers Association of Zimbabwe & Fred Mutanda vs the Judicial Service Commission, the former Honourable Chief Justice Luke Malaba & the Attorney General, which was filed with the support of ZLHR, and Musa Kika v Minister of Justice and Others, which was filed by the Zimbabwe Human Rights NGO Forum.
The consolidated application challenged, among other things, the extension of tenure of former Honourable Chief Justice Luke Malaba, by virtue of the amendment of section 186 of the Constitution of Zimbabwe by Constitution of Zimbabwe Amendment Act (No.2), which came into force on 7 May 2021. Section 186(1)(a) of the Constitution had provided that Constitutional Court judges must retire upon reaching the age of 70 years. Mr Malaba, who turned 70 years old on 15 May 2021, was thus required to retire as the Chief Justice of Zimbabwe on 15 May. Section 186, as amended, now allows for extension of tenure after 70 years subject to a medical report of fitness and approval of the president, after consultation with the Judicial Service Commission. However section 328(7) of the Constitution expressly prohibits any amendments of the Constitution extending term-limit extensions from applying to incumbents.
The historic case was argued in the High Court before Honourable Justice Happias Zhou, sitting with Honourable Justice Edith Mushore and Honourable Justice Jester Charewa, by ZLHR members David Drury and Honourable Tendai Biti, together with Advocate Thabani Mpofu and Andrea Dracos, from 14:00 on 14 May 2021 until 00.30 in the early morning of 15 May 2021. On 15 May 2021, the court delivered its order, and have subsequently released a summary judgment, declaring that Mr. Luke Malaba’s tenure as Chief Justice of Zimbabwe came to an end at 00:00 on 15 May 2021, on the basis that as an incumbent he was prohibited from benefitting from the amendment allowing for extension of term-limits of judges after 70 years.
We applaud the declaratory order upholding the Constitution and confirming the end of Mr. Malaba’s tenure as Chief Justice, as a triumphant moment for the fundamental principle of constitutional supremacy and the rule of law in Zimbabwe.
We note with grave concern, however, the chilling statement of the Honourable Minister of Justice, Legal and Parliamentary Affairs Hon. Ziyambi Ziyambi issued on 15 May 2021 in response to the order, stating that ‘multi-lateral and foreign organisations… have poured in a lot of money through the Zimbabwe Lawyers for Human Rights to capture various state institutions and to destabilise the Government’… and that, ‘the Judiciary has been captured by certain elements both within and outside Zimbabwe who want to destabilise the second Republic.’
We call upon the Government of Zimbabwe to respect the independence of the judiciary and the rights of legal officers to represent their clients without fear or favour, as well as to respect the importance of maintaining a vibrant civil society to work with Government to uphold the Constitution and rule of law.
We have also noted the indication from both the Minister of Justice, Legal and Parliamentary Affairs, and the Judicial Service Commission of their intention to appeal the judgment, once full reasons are made available. We confirm YLAZ’s intention to oppose any appeal noted, and to take all steps available to ensure that the judgment is upheld and applied.
We call upon all Zimbabweans to jointly celebrate the court’s decision upholding the supreme law of the country, the Constitution, demonstrating our courts’ commitment to protecting the will of the people that is enshrined in the Constitution.
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