The Zimbabwe government made a mess of its appeal against a recent High Court ruling on former Chief Justice Luke Malaba’s case by lodging its papers at the Supreme Court instead of the Constitutional Court (ConCourt).
This was said by law expert and lecturer at Kent University, Alex Magaisa in an interview with NewsDay on Tuesday.
It comes after three High Court judges – Justices Happias Zhou, Jester Helena Charehwa and Edith Mushore, on Saturday ruled against the extension of the former Chief Justice’s term of office by five years.
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Magaisa argued that the appeal should have been brought before the ConCourt rather than the Supreme Court. He said:
We are talking of either two avenues, it could be an appeal, the legality of the legal process of having an appeal from a decision of the High Court would be that it doesn’t go to the Supreme Court and this in terms of the very reason which was made in 2020 by Justice Paddington Garwe and agreed to by fellow judges of the Supreme Court, that such an application goes direct to the ConCourt and this is in the case of Mfundo Mlilo versus the President of Zimbabwe.
So in my opinion and I think the opinion of most lawyers who appreciate the legalities of this, it’s a fact that the application in the Supreme Court is in the wrong forum and it has to go to the ConCourt.
Magaisa further stated that even if the case was correctly in the ConCourt, that did not solve the problem because all the judges of the two courts were cited and were conflicted. He said:
Even the point that the case has to go to the ConCourt for confirmation, even assuming that’s the correct position, still requires to be heard by a full bench of the ConCourt.
As I pointed out before, all those judges of the ConCourt are conflicted. This is the nub of the crisis that we face and I have explained that a constitutional crisis arises from many situations.
One of the situations is when the constitutional arrangements no longer have mechanisms to provide a resolution to a dispute.
One option is to find judges either retired judges or appoint judges of the High Court to sit on the panel, maybe even foreign judges to do so.
But again we have a problem because someone has to appoint them. Judges of the ConCourt or Supreme Court are not chosen by the President, I mean acting judges, such acting judges have to be appointed by the CJ and we don’t have a substantive CJ.
Even if we had the CJ himself or outgoing, he is conflicted because he is part to the action and has an interest in the matter.
The Deputy CJ who is acting CJ is also in a similar position and all those judges are in the same position. This is what I warned about a month ago that we now have a constitutional crisis.
Magaisa opined that the issues which were being pointed out about the technicalities and procedures all led up to a cul de sac (dead end). He said:
The question you should be asking me is: What happens since we now have a constitutional crisis? We have to seek a political solution.
In my opinion, this is where citizens meet together in a sober way to find a political solution to this crisis.
Magaisa’s sentiments were echoed by professor of world politics at the School of Oriental and African Studies University of London, Stephen Chan who said the appeal should be heard in the ConCourt.
Meanwhile, Advocate Lewis Uriri said the High Court judgment had no effect until confirmed by the ConCourt. Said Uriri:
Whether or not the judgment is purely declaratory is regardless. It has the effect that the conduct of the President in extending the CJ’s term is constitutionally invalid. It is this effect that has no force unless it is confirmed by the ConCourt.
An appeal by the respondents, while the route to take if they disagree with the judgment, is strictly not necessary. There have to be confirmation proceedings before the ConCourt.