The High Court has found the Chief Justice of the Supreme Court, Luke Malaba, not in contempt of court for returning to work following a ruling by the same court that the extension of his term of office by the president was null and void.
According to a VOA Correspondent based in Harare, Justices Amy Tsanga and Slyvia Chirawu-Mugomba ruled today that Malaba followed proper procedures when he returned to work after the Attorney General and the Minister of Home Affairs and Cultural Heritage filed an appeal against the High Court order that invalidated his extension of office.
Musa Kika of the Zimbabwe Human Rights NGO Forum filed an urgent court application seeking the incacertation of Malaba for a six-month jail term claiming that Malaba was in contempt of court.
Kika's attorneys indicated that they go back to court Friday to challenge the High Court ruling.
One of Kika's attorneys, Thabani Mpofu, said on Twitter, "We have taken note of the judgment of the High Court. We will be approaching the courts tomorrow with our next course of action."
Kika filed an urgent court application seeking the committal of Malaba to Chikurubi Prison for a period of six months for allegedly defying the High Court order issued by Justices Happias Zhou, Edith Mushore and Jester Charewa a week ago.
Kika, who was the applicant in the matter which was joined with another application filed by the Young Lawyers Association of Zimbabwe, secured a declaratory order in terms of which the High Court declared that Malaba’s tenure as a judge and chief justice of Zimbabwe came to an end on May 15, 2021.
When seeking an order for Malaba's incarceration, Kika said, “... In complete defiance of this order the former chief justice presented himself at his office on May 24, 2021. The Judicial Service Commission (JSC) secretary, Walter Chikwanha, was quoted in the Herald newspaper as having confirmed the return of Malaba because of an appeal which the JSC noted.”
Kika argued in his founding affidavit that the JSC’s view that the appeal field by the government has suspended the operation of the judgment of the High Court “is incorrect as the judgment of the court is a declaratur and is for that reason not suspended by the noting of an appeal.”
He further stated that as a jurist of distinction, “Malaba is aware of this position but has simply decided to be in contempt of court.”
Kika sought to have the prison term suspended on the grounds that Malaba shall “forthwith cease and desist from exercising the functions of the chief justice either in a judiciary or administrative capacity.”
Kika also sought to have an order that the record of these proceedings be placed before the Law Society’s Disciplinary and Ethics Committee for it to take any action that it may find advisable and appropriate, considering the circumstances of the matter.
The three High Court judges ruled that “… Extension of the time provided for in Section 186 does not apply to CJ (the chief justice) and any sitting but not acting judges of the Supreme Court and Constitutional Court and there shall be no order as to costs.”
YLAZ, Kika and a war veteran, Frederick Mutanda, a liberation war veteran, filed an urgent chamber application at Harare High Court seeking an order to stop Malaba from continuing as the head of the Constitutional Court after he reached the age of 70.
His term of office was extended by President Emmerson Mnangagwa following the enactment of the Zimbabwe Constitution Amendment (Number 2) Act.