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Constitutional Court Quashes Lower Court Ruling Blocking Extension of Malaba’s Term of Office

FILE: Zimbabwean President Emmerson Mnangagwa,left, is congratulated by Chief Justice Luke Malaba after taking his oath during his inauguration ceremony at the National Sports Stadium in Harare, Sunday, Aug. 26, 2018.

Zimbabwe’s Constitutional Court today quashed a lower court’s ruling that the extension of Chief Justice Luke Malaba’s term of office after attaining 70 years was illegal.

Justice Bharat Patel and Justice Rita Makarau ruled that Malaba has been legally in office from the time his term was extended by President Emmerson Mnangagwa in May this year.

In his application seeking to nullify the High Court ruling, Marx Mupungu of Bulawayo argued that the lower court’s judgment violated some constitutional provisions giving the president and parliament the power to extend judges’ term of office, if medically fit, for another five years after the ‘prescribed’ retirement age of 70.

Mupungu’s attorney, Lovemore Madhuku, said the Constitutional Court ruling has granted Malaba power to work as the country’s top legal mind.

The High Court ruled in May that Malaba retired as per some provisions of the country’s constitution.

Justice Jester Charewa, Justice Happias Zhou and Justice Edith Mushore of the High Court ruled that “… The CJ (Chief Justice) ceased to hold the office as 15/15/21. Extension of the time provided for in Section 186 does not apply to CJ and any sitting but not acting Judges of the Supreme Court and Constitutional Court and there shall be no order as to costs.”

The Young Lawyers Association of Zimbabwe and a war veteran, Frederick Mutanda, a liberation war veteran, filed an urgent chamber application at Harare High Court, seeking an order to stop Chief Justice Luke Malaba from continuing as the head of the Constitutional Court.

In the application filed by Honey & Blanckenberg Legal Practitioners, who are members of Zimbabwe Lawyers for Human Rights, YLAZ, and Mutanda argued that Chief Justice Malaba ought not to benefit from the term extension provisions as introduced by the amendment of the Constitution since he has served 15 years as a judge of the Constitutional Court.

YLAZ and Mutanda argued that the Judicial Service Commission (JSC), which was cited as the first respondent, failed to discharge its constitutional obligations diligently and without delay as was and now is required in law and as provided in section 324 of the Constitution.

YLAZ contended that if Chief Justice Malaba continues in office, there would be no Constitutional Court in Zimbabwe, thereby pushing the country into a constitutional crisis because he would have retained power in clear contravention of section 328(7) of the Constitution.

In a supporting affidavit filed together with the urgent chamber application, Mutanda argued that government is reversing the gains and fruits of the liberation struggle such as violating some provisions of the Constitution.

YLAZ and Mutanda wanted the High Court to declare that in failing to activate the provisions of section 180 of the Constitution diligently and without delay, the JSC violated section 324 of the Constitution.

They also wanted Chief Justice Malaba not to benefit from the term limit extension as introduced by an amendment of section 186 of the Constitution and for him to vacate office as the chief justice on May 15, 2021.

In the alternative, YLAZ and Mutanda wanted section 14 of Constitution of Zimbabwe Amendment (No.2) Act, 2021, to be declared invalid for violating section 56(3) of the Constitution and be struck down.

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